Chester v Secretary of State for Justice & Anor  EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
When can an agricultural landlord turf out his tenant farmer? The answer to this question has ebbed and flowed since the Second World War, but one element of the latest attempt by the Scottish Parliament to redress the balance in favour of tenants has just been declared incompatible with Article 1 of the 1st Protocol (A1P1) as offending landlords’ rights to property. The Supreme Court has so ruled, upholding the Second Division of the Court of Session’s ruling in March 2012.
The reasoning is not just of interest to agricultural lawyers either side of the border. But a brief summary of the laws is necessary in order to identify the invidiousness of the new law as identified by the Court – and hence its applicability to other circumstances.
As will be seen from my postscript, the decision of the court below to the same effect appears to have had tragic consequences.
The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.
On 11th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).
Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.
The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.
It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.
A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.
An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.
R (ota Davis et al) v. Secretary of State for Home Department  EWHC 2092 – 17 July 2015 –read judgment
When a domestic Act of Parliament is in conflict with EU law, EU law wins. And when a bit of the EU Charter (given effect by the Lisbon Treaty) conflicts with an EU Directive, the EU Charter wins.
Which is why the Divisional Court found itself quashing an Act of Parliament on Friday – at the behest of four claimants, including two MPs, the Tories’ David Davis and Labour’s Tom Watson.
The doomed Act is the Data Retention and Investigatory Powers Act 2014 or DRIPA. It was in conformity with an underlying EU Directive (the Data Retention Directive 2006/24/EC or DRD – here). However, and prior to DRIPA, the DRD had been invalidated by the EU Court (in the Digital Rights Ireland case here) because it was in breach of the EU Charter.
All this concerns communications data, which tell us who was sending an email, to whom, from where, and when – but not the content of the email. DRIPA in effect compels telecoms providers to keep communications data for 12 months, and to make it available to public bodies such as intelligence and law enforcement agencies.
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.
In Boyd & Anor v Ineos Upstream Ltd & Ors  EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
The UK’s new Supreme Court has reached the end of its first term, leading to some interesting discussions about its future from both practical and philosophical perspectives. From a human rights angle, a well-tooled and robust Supreme Court which acts to keep the government in check is good for everyone.
On a practical level, the UK Supreme Court Blog has posted on the stark warning from the UKSC’s chief executive, Jenny Rowe, to the effect that the Government’s proposed budget cuts could cripple the new court after only a year in operation. The UKSC Blog reports that Jenny Rowe, the court’s Chief Executive, has said she is not sure where the axe will fall but that “since casework (i.e. the hearing and determination of appeals) was the Court’s “priority“, it would be the Court’s public education and outreach programmes that would be most vulnerable.”
The CJEU has ruled, in a first for that regulation, that the use of “Zero Tariff” contracts are inconsistent with its “Open Internet” regulation (Regulation 2015/2120). The regulation “aims to establish common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and end users’ rights”. Its intention is to legally establish the principle of ‘Net Neutrality’, whereby internet access providers are prohibited from giving preferential treatment (for example, limiting access or increasing traffic speeds) to specific websites and users.
The issue in this case was whether zero tariff contracts offered by Telenor, an Hungarian internet access provider, contravened net neutrality regulation. Zero tariff contracts provide data allowances to their users, (1 GB, for instance), which the consumer is allowed to use as they please. On running out of data, typically internet access would be stopped. However, in its two zero tariff contracts, called MyChat and MyMusic, certain websites and applications did not run down the data allowance. Furthermore, even once the data allowance had been used up, the same websites and applications could still be accessed, although otherwise no internet access was provided.
‘The Conservative Party has won a majority and can implement its manifesto. The Human Rights Act will be scrapped,’ writes Colin Yeo for the Free Movement blog. Such an outcome might not be a foregone conclusion, but Professor Mark Elliott is clear that ‘repeal of the HRA, the adoption of a British Bill of Rights and perhaps even withdrawal from the ECHR are now less unthinkable’.
Questions surrounding the content of the proposed Bill of Rights have therefore assumed increased urgency. A press release issued in October 2014 spoke of limiting the rights of illegal immigrants, travellers, victims of British military abuse and foreigners who commit crimes in the UK. Yet as UKHRB founder Adam Wagner notes, ‘only foreign criminals were mentioned in the manifesto, so it is all to play for.’
The HRA has failed to secure resilience in domestic politics. Benedict Douglas for the UK Constitutional Law blog attributes this failure to an absence in the Act of a ‘justification for rights possession in dignity or any other foundational human characteristic’. Mark Elliott points to the manner of its introduction: little effort was made ‘to engage the general public in what was perceived to be a political and legal elite’s pet project’.
Current discussions could thus present an opportunity, argues Adam Wagner for RightsInfo. A ‘Bill of Rights, done properly with real public involvement might help convince people that human rights are for all of us.’
For those looking to read more about human rights reform:
The Human Rights Act and a Question of Legitimacy – Barrister Austen Morgan considers the advantages of a British Bill of Rights for The Justice Gap.
What does a Conservative Government Mean for the Future of Human Rights in the UK? – Professor Mark Elliot puts together a useful list of recent posts he has written on Conservative plans for reform.
Michael Gove has been appointed Justice Secretary and Lord Chancellor in the post-election Cabinet. The Telegraph reports here.
BBC: Two Syrian asylum seekers imprisoned for failing to provide passports have been successful in appealing their convictions.
The High Court has ruled that a child should be brought up by her genetic father and his male partner, despite objections from the surrogate mother. The Guardian reports.
The Justice Gap: The Uk Supreme Court has launched an on-demand video catch-up.
Legal Voice: More than 8,000 lawyers are set to join the London Legal Walk to raise funds for the legal not-for-profit sector
Mark Freedland and Jeremias Prassl express concerns over the impact and regulation of ‘zero-hours contracts’ for the Oxford Human Rights Hub.
The case concerned the imposition of administrative fines on individuals who had been acquitted by the criminal courts of the same offence. The ECtHR found a violation of the right to a presumption of innocence (contra. Article 6 ECHR) and also the right not to be tried or punished twice (Article 4 of Protocol No.7).
‘In Conversation with Sir Stephen Sedley’ – As part of LSE’s Legal Biography Project, Sir Ross Cranston will interview Sir Stephen Sedley on his life and career in the law. The event will be held on 19 May in the Wolfson Theatre, New Academic Building. More information can be found here.
If you would like your event to be mentioned on the Blog, please email Jim Duffy at firstname.lastname@example.org
The latest reports of HM Chief Inspector of Prisons and the Parliamentary Joint Committee on Human Rights lay bare the conditions in some British prisons.
Some of the language that is used to describe living conditions in the Chief Inspector’s report is shocking – including “appalling”, “squalid”, “intolerable”, “extremely squalid” and beset with “vermin and filth”.
The Chief Inspector’s view is that such conditions “should not feature in 21st century jails”. This conclusion was expressed prior to the further impact caused by the Covid-19 pandemic.
The conclusion of the Parliamentary Joint Committee on Human Rights is that the Government’s response and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison”.
In the view of this author, the evidence indicates that in several respects the UK may well be in breach of vital protections for prisoners and their families under Articles 3 and 8 of the European Convention on Human Rights (ECHR). This extended piece will examine these issues in detail.
Amnesty describes the NCP as “totally failing in numerous ways”, with its complaint handling procedure being “inconsistent, unreliable and biased towards businesses” resulting in companies being let “off the hook”. The failures to investigate include allegations of serious abuse, such as claims that Vodafone, BT and others allowed GCHQ to access its networks for the mass interception of phone calls, emails and Facebook posts, which it shared with the US authorities under the Tempora program.
The all-party foreign affairs select committee is currently investigating whether the Foreign Office has downgraded its commitment to defending human rights in favour of trade. MPs on the committee decided to hold an enquiry after the permanent secretary at the Foreign Office, Sir Simon McDonald, commented that human rights no longer had the same profile within his department that they had in the past.
A BIS spokesperson has said in response that their review process meets all the obligations under the OECD guidelines for trading and that there should be no suggestion the government is not committed to human rights.
Last week also saw David Cameron describe UK arms exports to Saudi Arabia as “brilliant” – on the same day that the European Parliament voted for an arms embargo on the country for its aerial bombings on Yemen.
Last week a seven-judge Supreme Court heard a case on whether the minimum-income visa requirements for UK nationals to bring over a non-EU spouse are in contravention of the right to respect for private and family life under Article 8, the Guardian reports. Under the Family Migration Rules, which changed in July 2012, UK nationals must have available funds equivalent to a minimum gross income of £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child of non-British citizenship. Two of the appellants, Abdul Majid and Shabana Javed, are British and married to Pakistani nationals; another, MM, is a Lebanese refugee; and the fourth, AF (also MM’s nephew) is a refugee from the Democratic Republic of Congo. The appellant counsel described the threshold as “completely unachievable” for many. Judgment is expected within six months.
Proposals to replace the Human Rights Act with a British Bill of Rights have been “put on ice”. Though it is claimed that the legislation is finished and “sitting on a desk inside No.10”, Downing Street is refusing to publish it, allegedly due to Gove’s decision to “defect to the Out camp” in the referendum. An unsurprised David Allen Green comments that the Human Rights Act is not likely to be repealed in this Parliament, saying that the hurdles to doing so still remain (such as the Good Friday Agreement), and suggests that the Conservatives may have begun to realise that its repeal and replacement “is not worth the time and effort”.
In the Courts
Civek v Turkey – The Court held unanimously that the Turkish authorities had violated Article 2 (right to life) by failing to protect the life of a woman who had been seriously threatened by her husband, HC. Ms Civek had made continued complaints of harassment to the Turkish authorities yet they had failed to take measures reasonably available to them to avoid her murder. Ms Civek had been subjected to sustained abuse from her husband culminating in 2010 in his remand in custody and a court order to refrain from being violent towards his wife. After his release in November 2010 (under judicial supervision), Ms Civek had complained that he was threatening to kill her. Again in December 2010 Ms Civek lodged a complaint, which led to HC being charged with threatening to kill her – but the State Prosecutor took no practical action, even though the husband could have been legitimately arrested for non-compliance with court orders. The Court found the authorities should have acted to protect Ms Civek’s life, and through their failure, her husband had been able to murder her on a street in January 2011, stabbing her 22 times.
Société de Conception de Presse et d’Édition v. France – An order by the French domestic courts that an unauthorised photograph published by Choc magazine be blacked out was not a violation of freedom of expression under article 10. Choc magazine, published by the applicant company, had published photos of a young man, IH, taken whilst he was in captivity, wearing shackles, and showing visible signs of torture. He had later died from his injuries. The Court found that the photograph had never been intended for public viewing, permission had not been obtained from IH’s relatives, and that its publication showed a grave disregard for the grief of his family. It was therefore a serious interference with the private life of IH’s relatives. The Paris Court of Appeal had ordered that the photograph in question be blacked out in all magazines put on sale, rather than withdrawn completely. The European Court of Human Rights found that such a restriction on freedom of expression was proportionate, as the text of the report remained unchanged, and that in the circumstances the penalty imposed would not have a “chilling effect” on freedom of expression.
Nasr and Ghali v Italy – This case concerned the CIA abduction and extraordinary rendition (the transfer of a person without legal process to another country for interrogation where there is a risk they might be tortured) with the cooperation of the Italian authorities, of the Egyptian imam Abu Omar (also known as Osama Nasr), who had been granted political asylum in Italy. He was held in secret in Egypt for several months in cramped and unhygienic cells where he was periodically interrogated and tortured. An investigation into Mr Nasr’s disappearance had been carried out by the national authorities but this had been ineffective due to the executive’s invocation of ‘State secrecy’ – which resulted in those responsible being granted impunity.
The Court found in respect of Mr Nasr violations of Article 3 prohibition on torture (in previous cases the Court had already held that the treatment of detainees under the CIA’s extraordinary rendition programme amounted to torture), Article 5 (right to liberty and security) – due to the unlawful nature of the detention; Article 8 (right to respect for private and family life) and Article 13 (right to effective remedy) read together with Articles 3, 5 and 8. The Court also found in respect of Ms Ghali, Mr Nasr’s wife, violations of Article 3 (because she had suffered significant non-pecuniary damage as a result of her husband’s sudden disappearance), Article 8 and Article 13.
I have an opinion piece in this week’s Jewish Chronicle, We should support and not condemn Human Rights Act. The “we” in the title is the Jewish community, of which I am a part, although it also amounts to a fairly broad defence of the Human Rights Act.
The article was at first intended as a direct response to an opinion piece by Jonathan Fisher QC entitled The wrongs of human rights, but because of editorial pressures at the Jewish Chronicle it could not be published until a few weeks later, and as such ended up being a more general article. I have already commented on this blog on why I thought the timing of Fisher’s article was a little odd given that the Bill of Rights Commission, on which he sits, was still consulting the public on the very issues he addressed passionately in the article. I said:
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