27 November 2012 by David Hart KC
Sweetman v. An Bord Pleanala, CJEU, Advocate-General Sharpston, 22 November 2012 read opinion
In May 2012 the Habitats Directive celebrated its 20th birthday. It has been under a good deal of flak over the years, particularly from business interests both in and out of government. The reason is plain. The Directive has made member states identify important sites in their territories to the EU (with a certain amount of prodding on the way). It then tells them to keep those sites unaffected by development save in exceptional cases, where there is overriding public interest in the project, there is no alternative solution and, further, that there can be full compensation for the losses caused by the development.
So a member state cannot routinely fudge things against protected habitats in favour of whatever other public interest may be uppermost at the time – wind farms, or supermarkets or chemical works or residential newbuild on greenbelt, for instance. In all but exceptional cases (see here for my post on a proposal which was said to be exceptional), you must not adversely affect the site.
Now for this powerful system of protection in practice, thanks to a tour d’horizon (and de force) by the Advocate-General.
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27 November 2012 by Rosalind English
Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here
This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.
Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.
Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.
It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.
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26 November 2012 by Guest Contributor
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
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26 November 2012 by Guest Contributor
I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days.
It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the European Convention on Human Rights (ECHR) itself must seemingly be taken as a serious possibility, depending on the outcome of the next election. The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter?
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25 November 2012 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The government was on the defensive this week on a number of fronts. It suffered significant defeats in the House of Lords over its proposals for secret civil trials under the Justice and Security Bill. Prime Minister David Cameron has also received a barrage of criticism over his calls for tightening the criteria for judicial review applications. Meanwhile, the prisoner voting saga continues, with Justice Secretary Chris Grayling (on the eve of the deadline) giving Parliament (or, more accurately, a Parliamentary committee) three options on the issue. Meanwhile, a new criminal offence of stalking has been introduced.
by Daniel Isenberg
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22 November 2012 by Rosalind English
Oakes and others v R [2012] EWCA Crim 2435 – read judgment
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
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22 November 2012 by Adam Wagner
Update | The Voting Eligibility (Prisoners) Draft Bill has been released. It will not be put straight before Parliament for a vote; rather, it will be put to a Committee of both Houses for full Parliamentary scrutiny which could propose amendments, then back to the Government which will “reflect on its recommendations” and subsequently introduce a bill. There is no timetable set out for this process, but I imagine the Council of Europe may want a timetable imposed.
The bill sets out three options:
- A ban for prisoners sentenced to 4 years or more.
- A ban for prisoners sentenced to more than 6 months.
- A ban for all convicted prisoners – a restatement of the existing ban.
One interesting point on a quick read through is that option three “would re-enact the current general ban on prisoner voting, with some minor changes.” The language is indeed different to that used to enact the current ban, which is contained in section 3 of the Representation of the People Act 1983.
21 November 2012 by Guest Contributor
For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.
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21 November 2012 by Rosalind English
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
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21 November 2012 by David Hart KC
R (Bancoult) v. Foreign & Commonwealth Office, Divisional Court, 21 November 2012 read judgment
I posted recently (here) on two decisions concerning Chagossian refugees in their long-running campaign to be re-settled in the islands from which they were evicted by the UK in the 1960s. The first was a claim for further documentation, the second an application for cross-examination of key Foreign Office witnesses on the basis of a Wikileaks document (read judgment and read judgment).
And here is another skirmish in the same battle.
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19 November 2012 by Adam Wagner
The Prime Minister is to “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review. David Cameron told business leaders today:
“When this country was at war in the 40s, Whitehall underwent a revolution. … everything was thrown at ‘the overriding purpose’ of beating Hitler. … this country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race.”
The detail of the changes is yet to be revealed (update – more detail is now available on the Ministry of Justice website, including the promise of a public consultation), but the PM plans to ” reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting.”
Clearly some of the PM’s Dunkirk spirit rhetoric is aimed at cheering up business leaders, who need a lot of that at the moment. But putting the rhetoric aside, there is cause for concern here.
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19 November 2012 by Daniel Isenberg
This is the first post by the blog’s new rounder-uppper Daniel Isenberg, who joins Sam Murrant. Welcome, Daniel!
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week’s human rights news was dominated by the man who has become the Home Secretary’s bête noire, Abu Qatada. Elsewhere the UK’s relationship with the Strasbourg Court was addressed by Jack Straw and the Court’s recently-retired President, whilst the Court, itself, criticised the UK’s policy on criminal records data retention. Meanwhile, in speeches two Court of Appeal judges have made expressed views on human rights and the principle of proportionality.
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18 November 2012 by David Hart KC
R v. Waya [2012] UKSC 51, 14 November 2012, read judgment
Traditionally, the qualified right to peaceful possession of property conferred by Article 1 of the 1st Protocol (A1P1) has been thought of as a rather feeble entitlement, easily outweighed by public interests. After all, every day of the week, the modern state affects that right – think taxes or planning restrictions, or business bans arising out of public health concerns (e.g. see here), where removal and confiscation or restriction on what we do with property is readily accepted. Last week the Supreme Court ruled that the Proceeds of Crime Act 2002 (POCA) needs a bit of remedial HR surgery as and when its blunderbuss rules would otherwise have a disproportionate effect on those affected. But the importance of the ruling extends far beyond the specific statutory context.
The story is a familiar one. Parliament, quite rightly, decided that we needed a way of taking the benefits of crime away from criminals on conviction – over and above the system of fines. But it also realised that without some set rules this will prove difficult, if not impossible, to administrate. If the exercise were to be to ascertain the net benefit of the crime, then we get into frightful tangles. Can a defendant set off against his profit of crime his expenses – the cash to the getaway driver, the bung to the dodgy public official, or the contract killing payment? The answer in the statute, and in this decision, is – No. This would be offensive and impractical. So far, so good.
But how far may the answer to the question – what did D really gain from this crime – diverge from the answer given by the statute? This was the conundrum facing the Supreme Court. And it found it very difficult. It had an initial hearing in 2011 in front of 7 judges – but then requested a re-hearing in front of 9. And those 9 split 7-2 in the result, thought the critical reasoning was common to all 9 judges.
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18 November 2012 by Adam Wagner
It is being reported that Parliament will, after all, get the opportunity to decide whether the blanket ban on convicted prisoners being able to vote will be lifted. MPs could get three options to choose from, including removing the ban for prisoners serving six months or less and those serving four years or less. A third option will be to maintain the status quo, with no convicted prisoners being able to vote.
The crucial question is: will this be enough to satisfy the Council of Europe, which monitors compliance with judgments of the European Court of Human Rights? The Government appears to think so. For my part, I am not so sure. To explain why, it is important to get a few of the facts right first.
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16 November 2012 by Adam Wagner
You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.
Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”
It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.
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Sweetman v. An Bord Pleanala, CJEU, Advocate-General Sharpston, 22 November 2012 read opinion 
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