Category: Politics / Public Order
20 April 2012 by Guest Contributor
The Abu Qatada deadline debacle has once again thrust the European Court of Human Rights – and in particular, its relationship with the UK – into unwanted controversy just as European representatives gathered in Brighton to debate the Court’s future. This new fracas over the deportation of Abu Qatada has acted as a lightning rod for well-rehearsed criticisms of the Strasbourg Court – that it is a ‘meddling pseudo-judiciary’ and the enforcer of a villains’ charter.
A new report for the Equality and Human Rights Commission by researchers at London Metropolitan University and LSE, including myself, addresses these critiques as part of a broad analysis of the relationship between the UK and Strasbourg.
Among those interviewed for the report were the President of the European Court, Sir Nicolas Bratza; the outgoing Council of Europe Commissioner for Human Rights, Thomas Hammarberg; and, in the UK, Baroness Hale, Sir John Laws and Jack Straw, along with two members of the Commission on a Bill of Rights, Lord Lester QC and Anthony Speaight QC. The report also conducts a thematic analysis of case law, as well as examining wider literature and the voluminous statistics produced by the Court.
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18 April 2012 by Adam Wagner
As the last hurrah of its Chairmanship of the Council of Europe, beginning today the United Kingdom is hosting the High Level Conference on the Future of the European Court of Human Rights in Brighton. As delegates settle into their Eurostar seats on the way over, here are a few useful tips:
1. If you have forgotten sun cream, don’t worry! The weather forecast is terrible.
2. All of the important documents are on the Conference website, including the Conference Programme and the declarations from the last two such conferences: Izmir (2011) and Interlaken (2010). There is also a CoE press release. In case you need to refresh yourself on the CoE itself, the BBC has this useful profile.
3. The most important document is the draft Declaration which you are being asked to approve. The document has been the subject of frantic negotiations and you will no doubt receive an up to date version. In the meantime, here is a slightly out-of-date version which even has useful track changes to show what has changed since the UK’s first draft. The somewhat ugly buzz-word for the Conference will be subsidiarity.
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16 April 2012 by Guest Contributor
Department of Health v IC, Healey and Cecil(EA/2011/0286 & EA/2011/0287) – Read Decision
In a recent post, Panopticon brought you, hot-off-the-press, the Tribunal’s decision in the much-publicised case involving publication, under Freedom of Information Law, of the NHS Risk Register. Somewhat less hot-off-the-press are my observations. This is a very important decision, both for its engagement with the legislative process and for its analysis of the public interest with respect to section 35(1)(a) of Freedom of Information Act 2000 (formulation or development of government policy) – particularly the “chilling effect” argument. At the outset, it is important to be clear about what was being requested and when.
Risk registers in general
The DOH prepared two “risk registers” documenting the risks associated with implementing the “far-reaching and highly controversial” NHS reforms under what was then the Health and Social Care Bill. The Tribunal heard that risk registers are used widely across government for project planning. They provide snapshots (rather than detailed discussions) combining the probability of and outcomes from any given risk associated with the proposed reform; risks are then classified in red, amber or green terms. According to Lord Gus O’Donnell, who gave evidence in support of the DOH’s case, risk registers are the most important tool used across government to formulate and develop policy for risk management in advising ministers. John Healey MP, one of the requesters in this case, said that he was a minister for ten years and was never shown such a register.
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12 April 2012 by Guest Contributor
Today was one of striking parallels between the USA and the UK in terms of litigation concerned with access to information.
APPGER and security bodies
First, one of The Independent‘s main stories this morning concerned a case brought in the US by the UK’s All Party Parliamentary Group on Extraordinary Rendition (APPGER). Readers will recall that in the UK, APPGER was partially successful before the Upper Tribunal last year; the decision of the First-Tier Tribunal in a second case (the hearing of which concluded in February 2012) is awaited.
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6 April 2012 by Guest Contributor
Civil liberties and the coalition have been happily filling the political pages this week. The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings (expertly dissected by Rosalind English earlier in the week) vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security.
These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.
After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.
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2 April 2012 by Guest Contributor
Austin & Others v. The United Kingdom, [2012] ECHR 459, 15th March 2012 – read judgment
The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.
The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive.
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29 March 2012 by Rosalind English
Hilal Abdul-Razzaq Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment
The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.
The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of 2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country.
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23 March 2012 by Matthew Flinn
Do Lord Phillips, Baroness Hale and other members of the judiciary have the right to say what they think? At first glance that seems like a ridiculous question. Firstly, it is their job to express their views on the legal disputes coming before them on an almost daily basis. Secondly, to look at it from an entirely different perspective, they enjoy the same protections granted by article 10 of the European Convention of Human Rights (ECHR) as the rest of us. Of course they have the right to say what they think.
But what about when they are acting in a non-judicial capacity – when they are giving speeches or participating in conferences or being interviewed? What about when the topic of discussion is not a narrowly defined legal point but a more politically charged issue of public debate? The answer must be the same. They have the right to express their views, but whether or not they should is a more nuanced question. This was the topic selected by the Lord Neuberger MR in his Presidential Address to the Holdsworth Club on 2 March 2012.
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15 March 2012 by Adam Wagner
The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title – Equal civil marriage consultation – the Government is only proposing to remove the ban on civil gay marriage.
The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.
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13 March 2012 by Guest Contributor
This post, by Angela Patrick, Director of Human Rights Policy at JUSTICE, is the fourth in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.
His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.
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9 March 2012 by Henry Oliver
In W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment
The Supreme Court has made a difficult decision. It is sometimes said that hard cases make bad law: this ruling may prove to be a good example of that cliché. The court was not being asked whether the Special Immigration Appeals Committee (SIAC) was legally allowed to issue orders that means evidence “will forever remain confidential” but rather the question was, “can SIAC ever properly make an absolute and irreversible order.”
The principles of open justice would tend towards the answer being no – but the court prioritised the welfare of the witness and allowed the order.
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9 March 2012 by Guest Contributor
The European Convention (via CoE)
This is the third in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.
At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.
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6 March 2012 by hrupdateadmin
This is the first in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Much of the criticism directed toward the European Court of Human Rights over the last year or so, in this country at least, has been that it is too ready to overrule decisions made by the competent United Kingdom national authorities. It is said that British courts have already addressed the relevant human rights arguments under the Human Rights Act, so it is quite wrong that Strasbourg should now ‘overrule’ them.
A recent high profile example, apparently, was Strasbourg’s finding of a violation of the Convention in the Abu Qatada case, despite the House of Lords’ earlier ruling, holding no violation of the ECHR. (See, for example, the Home Secretary’s expressions of frustration about this).
The leaked (British) draft of the Brighton Declaration (for commentary, see here, here and here) concerning the on-going reform of the ECHR is apparently seeking to rebalance matters in this regard, and perhaps put the Strasbourg Court in its place.
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22 February 2012 by Karwan Eskerie
Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties.
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31 January 2012 by Alasdair Henderson
The Prime Minister’s speech at the Council of Europe (see our coverage here) has attracted significant press attention over the past week – ranging from flag-waving, sabre-rattling support to criticism from Sir Nicholas Bratza (the British President of the Court).
Hot on the heels of Cameron’s address on Wednesday, the Attorney-General Dominic Grieve gave a speech on Thursday which set out in further detail the Government’s plans for reform of the European Court of Human Rights and the incorporation of human rights into UK law.
The full text of the Attorney-General’s speech is not yet available (although a similar speech he gave last year and his own speech to the Council of Europe can be found here). However, it was interesting to compare his comments with those of David Cameron just a day before.
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