20 October 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular chocolate fondu of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
The issue of prisoner votes returned to the courtroom this week, with an unsurprising judgment on many fronts. Meanwhile Lord Neuberger made his views known on how access to justice forms a crucial component of the rule of law; and commentators discuss why public bodies can’t bring claims under the HRA.
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18 October 2013 by Guest Contributor
People are going hungry in England because England, to the detriment of the poor, has forgotten its legal history.
Nearly eight hundred years ago, in 1216 English law first recognized a right to food. Yet between April and September this year over 350,000 people received three days’ emergency food from the Trussell Trust food banks, triple the numbers helped in the same period last year.
Although justifiable outrage has been expressed at this increasing hunger in 21st century England, such hunger has not been regarded as an issue of human rights law, but only of charity. The United Nations, however, has made clear that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights.
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18 October 2013 by Rosalind English
F v F [2013] EWHC 2683 (Fam) – read judgment
The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.
This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.
Background
Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely.
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17 October 2013 by David Hart KC
David Mead, in an interesting post – here – about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1.
As Mead points out, the judge was probably wrong to do so. On the face of it, the ODA had no rights under the Convention, under A1P1 or otherwise, because it was a public authority, and was likely to be acting as such in its protester-clearing role. One can perhaps save the judge’s blushes, by a slightly different route. The right of free speech under Article 10(1) has to be balanced against the protection of the rights of others under Article 10(2), and the latter would cover the ODA’s property rights which it was enforcing.
But the more fundamental question is why public authorities (think local authorities or NHS Trusts) cannot complain that they are HRA victims. After all, they can be unfairly dumped on by central government, can be lied about, can have their finances cut, their functions or their premises taken away (hospital unit closures), can receive an unfair trial, and ultimately lose their “life” in some governmental reorganisation.
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17 October 2013 by Guest Contributor
On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.
The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.
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16 October 2013 by Rosalind English
R (on the application of Maya Evans) v Secretary of State for Defence, with Associated Press intervening [2013] EWHC 3068 (Admin) – read judgment
In “Evans (No. 1)”, a 2010 case concerning the transfer of suspected insurgents for questioning in certain military centres in Afghanistan, the High Court had ruled, partly in an open judgment, partly in closed proceedings, that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without risk of ill treatment (which is contrary to UK policy), but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul. It was subsequently discovered that there had not been jurisdiction to follow a closed procedure in that case, but what was done could not be undone, so the confidentiality agreements and the closed judgment remained in force.
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16 October 2013 by Adam Wagner
R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland) [2013] UKSC 63 – read judgment / press summary
The Lord Chancellor Chris Grayling recently told The Spectator that he wants “to see our Supreme Court being supreme again“. In light of his respect for the court, he should read today’s judgment on prisoner votes very carefully indeed, as should David Cameron who has already endorsed the decision as a “great victory for common sense”.
The Supreme Court dismissed two claims by prisoners who argued their European Convention (Chester) and European Union (McGeogh) rights were being breached because they weren’t allowed to vote in various elections. I won’t summarise the detail of their arguments, which can be found in our previous posts on the Court of Appeal and Scottish Outer House Court of Session decisions.
We will aim to cover the substance of the decisions in due course. But what I find really interesting was the Justices’ views on the European Court’s various decisions on prisoner votes, which the Government argued were poorly reasoned.
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15 October 2013 by David Hart KC
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
Forgive me for returning to this case, but it raises all sorts of questions. On the face of it, it concerns 2 specific environmental directives, but it has implications for costs generally in environmental cases.
And why do I go on about costs? Because the prospect of being seriously out of pocket deters even the most altruistic environmentalist if they lose. Some may be purely NIMBYs, but most have a rather wider sense of the things that matter and that is not just about protecting their own assets. Claimants are normally up against public authorities and/or developers, so the balance of power has to be struck in the right place between them.
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15 October 2013 by Rosalind English
Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity) [2013] UKEAT 0401_12_0410 4 October 2013 – read judgment
These appeals, heard at the same time, raise the question whether someone employed in the UK by a foreign diplomatic mission as a member of its domestic staff may bring a claim to assert employment rights against the country whose mission it is, despite being met by an assertion of State Immunity under the State Immunity Act 1978. The EAT regarded itself bound by the supremacy of EU law to disapply the SIA, despite the fact that it had no jurisdiction to do so under the 1998 Human Rights Act.
This is the first time that the full force of the rights contained in the EU Charter of Fundamental Rights and Freedoms has made itself felt in a domestic dispute between private parties (although the embassies themselves are state institutions, as an employment dispute the matter is one of private law only). If upheld on appeal, this ruling will have consequences that extend far beyond the somewhat esoteric area of the immunity of diplomatic missions, and will make the effect of the Human Rights Act look puny by comparison (as pointed out by Joshua Rozenberg in his post on this case).
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14 October 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular full brass band of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, Lord Neuberger implied that even if the Human Rights Act were to be abolished, the court would continue to uphold human rights, perhaps foreshadowing the Supreme Court’s decision in Osborn. Meanwhile, the controversial Immigration Bill now has its overarching documents available, LSE are looking to create a written constitution and the Daily Mail are in trouble, again.
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14 October 2013 by Rosalind English
Delfi AS v Estonia (Application no. 64569/09) 10 October 2013 – read judgment
This case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The following summary is based on the Strasbourg Court’s press release.
The applicant company owns one of the largest internet news sites in Estonia. In January 2006, Delfi published an article on its webpage about a ferry company. It discussed the company’s decision to change the route its ferries took to certain islands. This had caused ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. Below the article, readers were able to access the comments of other users of the site. Many readers had written highly offensive or threatening posts about the ferry operator and its owner.
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14 October 2013 by Rosalind English
Cossey, R (on the application of) v Secretary of State for Justice [2013] EWHC 3029 (Admin) – read judgment
The High Court has dismissed an “absolutely meritless” claim by a prisoner that, in serving the non-tariff part of his sentence, he should be afforded all the Convention rights enjoyed by prisoners on remand or those serving time for civil offences such as contempt of court. As he had been deprived of the full panoply of rights, he said, he was a victim of discrimination contrary to Article 14.
This, said Mostyn J, was
The sort of claim that gives the Convention, incorporated into our domestic law by the Human Rights Act 1998, a bad name and which furnishes its critics with ammunition to shoot it down.
Were the key architect of the Convention, Lord Kilmuir, alive today, continued the judge, “he would be amazed to be told that a claim for violation of Article 14 was being advanced on the facts of this case.”
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14 October 2013 by Isabel McArdle
Secretary of State for the Home Department v Al -Jedda [2013] UKSC 62 – Read judgment / press summary
In late 2007, the Secretary of State for the Home Department made an order depriving Mr Al Jedda, who had been granted British citizenship in 2000, of his citizenship, under the British Nationality Act 1981. Section 40(4) of the Act prohibits the deprivation of nationality where the effect would be to render the person stateless.
Not being a citizen of any state can have profound effects on a person’s ability to live a normal life, including being unable to obtain travel documents and facing difficulty settling and obtaining work, education and healthcare. However, the Secretary of State considered that taking away Mr Al Jedda’s nationality was conducive to the public good.
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13 October 2013 by Guest Contributor
Osborn v The Parole Board [2013] UKSC 61 – Read judgment / Press summary
1 Crown Office Row’s David Manknell acted as junior counsel to the Parole Board in this case. He had no involvement in the writing of this post.
Writing in his magisterial new work, Human Rights and the UK Supreme Court, Professor Brice Dickson noted that the Human Rights Act had created ‘an internationalized system of human rights protection rather than a constitutional one.’ Indeed, there had been a marked resistance on the part of the Supreme Court to use the common law to achieve the same goal of human rights protection. In Osborn v The Parole Board the Supreme Court seemed to resile from this position.
Osborn, and the co-joined appeals, concerned the circumstances in which the Parole Board is required to hold oral hearings. Osborn had been recalled to prison after an immediate breach of his licence conditions. Booth and Reilly had been sentenced to life imprisonment, and in both cases the minimum term had expired. The appellants sought early release and had been denied an oral hearing by the Parole Board under the operation of the statutory regime (detailed in paras 3-17). Instead their cases had been decided on paper by a single anonymous member of the Board.
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12 October 2013 by Adam Wagner
“Human Right to Make a Killing”, screamed the Daily Mail last week, publishing details from a “damning dossier” which showed “Judges in Strasbourg paid out £4.4m to some of Britain’s worst criminals”.
The figures were taken from the response to a Parliamentary question put by Conservative MP Philip Davies. You can hear me debating him about the issue on BBC Radio 5 Live by clicking here – from 1:41:15 – watch out for the ‘human rights gravy train’ steaming into the debate around half way through.
Here is the full table if you are interested in the facts, which the Mail, Telegraph and no doubt others were clearly not.
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