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The Chief Inspector has described conditions at HMP Exeter (pictured) as “grim”. Image: Wikipedia
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.
The UK government is letting companies “off the hook” for human rights abuses, according to Amnesty International. In an 80-page report, Obstacle course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises, Amnesty claims that the National Contact Point (NCP) within the Department for Business Innovation and Skills – who is charged with handling complaints that private contracts may conflict with human rights commitments – is “unqualified to make complex human rights judgments”. The NCP is a non-judicial mechanism tasked with holding companies to account over breaches of the international standards set by the Organisation of Economic Cooperation and Development (OECD) – but has, it seems, rejected 60% of human rights complaints in the past five years without full investigation.
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.
Other news
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:
I have a new project. The aim is to change the face of human rights.
As readers of this blog will know, I often complain about bad human rights journalism. But inadequate reporting is a symptom of a deeper problem: poor public understanding of human rights.
It is time to do something about it. Introducing the Human Rights Information Project (HRIP).
Welcome back to the UK Human Rights Roundup, your regular high water mark of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the detention of David Miranda (pictured) was declared lawful by the High Court, while, in other news, the Court of Appeal has thrown in its lot to the saga of the whole-life tariff and the Supreme Court considered the thorny issue of religion and law.
The head of the Equality and Human Rights Commission, Kishwer Faulkner, is facing an independent investigation into alleged misconduct. It is reported that around 40 complaints have been made by 12 members of staff against Faulkner, alleging harassment, bullying, and discrimination. It is also alleged that Faulkner described Emma Laslet, a trans contestant on ‘Brain of Britain’, as ‘a bloke in lipstick’ – leading to claims of discriminatory language. Her supporters claim that the investigation is a witch-hunt and coup d’etat, motivated by employees critical of Faulkner’s approach to trans rights after she proposed changes to the definition of sex in the Equality Act 2010. These changes would clarify that ‘sex’ means ‘biological sex’ – a move that would clarify the position of trans people in sport, and ensure that only ‘biological women’ can use single-sex spaces. Faulkner also wrote to the Scottish government early in 2022 urging them to pause their proposed reforms to gender recognition (which were ignored). The investigation has since been paused while the Commission seeks legal advice on the impact of leaked confidential information as a result of the original report on this investigation by Channel 4 News.
The Council of Europe has warned the UK that the Illegal Migration Bill risks placing the UK in breach of at least five different international conventions, including the ECHR. The report specifically warns of the potential effects of the Bill on stateless persons, children, and victims of modern slavery – which the UK has positive obligations to protect under Article 4 ECHR. It also highlights the risk of the UK’s current trajectory, which will lead to legal uncertainty, breach of the rule of law, and damage to the UK’s reputation as a model country when it comes to the implementation of human rights. The UK has also been accused of equating migration status with criminality, which may lead to “dehumanising some of the most vulnerable people in society” according to rapporteur Kamal Jafarov. Fears are also growing of the UK’s increased appetite for non-compliance with international law as a result of the government’s own acknowledgement that the Bill may be incompatible with the ECHR. The draft resolution, which is due to be debated by the full Parliamentary Assembly of the CoE, can be found here.
In other CoE news, an expert committee has found that there is “troublingly persistent” discrimination against Gypsy, Roma and Travellers (GRT) in the UK. The report, which echoes sentiments expressed in Smith v Secretary of State for Levelling Up, Housing and Communities [2022] EWCA Civ 1391, found that GRT suffer bullying in the education system, prejudiced reporting in the media, and threats to their legal status and rights. This comes as a result of legal changes, such as the those to the Planning Policy for Traveller Sites, which were held to be indirectly discriminatory in Smith. They also cite a systemic lack of sites for GRT in the UK, and criminalisation of trespass with a vehicle by the Police, Crime, Sentencing and Courts Act 2022. The government is yet to respond to the report at the time of writing.
In other news
The human rights organisation Walk Free has found that there are at least 122,000 people living as modern slaves across the UK, down from 136,000 in 2018, but warned that the increasingly hostile environment regarding migration is denying victims the help and assistance they need. It also estimated that the UK imports £21 billion worth of products at risk of being made using forced labour, with high-risk industries including garments, electronics, fish, textiles and timber. However, the report also found that the UK had the strongest government response to modern slavery, both in the region and globally.
The NGO Iran Human Rights (IHR) has lambasted the “medieval” hanging of a 23-year-old man in public in Iran on 25th May for the crime of “corruption on earth”. Rights groups say that the hanging is part of a recent wave of executions aimed at intimidating the public after protests recently rocked the fundamentalist nation following the death of Mahsa Amini in police custody. 295 people have been executed in Iran this year alone. IHR has called for a robust international response and criticised the election of an Iranian representative as Chair of the UN Human Rights Council’s Social Forum.
The Human Rights Campaign, America’s largest LGBTQ rights group, has issued a travel advisory for the state of Florida following the passage of several hostile new laws. The advisory warns that the new laws and policies “pose a significant risk to the health and safety of many considering relocation and/or temporary travel to the state”. Furthermore, the NAACP, the American civil rights movement founded in the 1960s, has also advised against travelling to Florida, claiming that the state has become hostile to Black Americans. Florida’s governor, Ron DeSantis, has described the advisories as “nothing more than a stunt” and cited record tourism levels in the state earlier this year.
In the courts
In a major judgment delivered on Tuesday (Buhuceanu and Others v Romania), the European Court of Human Rights condemned the government in Bucharest for its failure to guarantee the rights of same-sex couples by providing for civil partnerships. President Klaus Lohannis in response called the topic “a complicated issue for Romania”, which the Parliament has to deal with.
A High Court judge has directed that government work towards identifying a chair for a new investigation into the Omagh bombing must be provided in writing in one week. Government progress on the probe, which they are obliged to undertake under Article 2 ECHR, has been criticised for alleged delays and failures which have unnecessarily protracted the proceedings. The case was brought by the bereaved father of one of the victims of the 1998 attack.
Judges blocking Rwanda flights may no longer be anonymous under an ECHR review prompted by Rishi Sunak after the so-called ‘pyjama injunctions’ blocked the maiden flight to Rwanda in the early hours of the morning in June last year. The move would make the names of the judges who make the orders public, contrary to longstanding practice.
Welcome back to the UK Human Rights Roundup, your regular breakfast cereal variety box 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.
Commentators have been criticising a number of assertions that Chris Grayling made about judicial review in the Daily Mail this week. Elsewhere, although Price Competitive Tendering has been scrapped, there are still many concerning proposals, and there has been a secret court rebellion by the Lib Dems.
Human Rights Awards: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here.
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.
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Graeme Hall
In the news
As the UK government is requesting the referral of Greens and M.T. v UKto the Grand Chamber, with the intention that the European Court of Human Rights reconsiders the issue of prisoner voting, the Committee of Ministers, vested with the responsibility to oversee the enforcement of the Court’s judgments, has put on hold its ongoing review of the UK’s compliance with the decision in Hirst v UK (No. 2). This comes at a time when a senior human rights academic, as well as other states (according to the PoliticsHome blog), are also questioning the Court’s legitimacy. The background to these controversial decisions can be found in Adam Wagner’s post.
Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here
The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.
by David Scott
Background
Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called. In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.
The Metropolitan Police have been criticised for their request to Sue Grey not to prejudice their investigation into parties held at Downing Street during lockdown. Ms Grey has yet to publish her report into the parties, but a “heavily redacted” version is expected “imminently” according to the Guardian. The Met requested the report to make “minimal reference” to the parties, not that it be delayed or otherwise limited, but it has caused some to question the motives and/or competence of the police. It is possible that their investigation will go beyond current public knowledge and if criminal charges result in a jury trial the police do have to ensure potential jurors are not prejudiced. On the other hand, human rights barrister Adam Wagner has questioned why a civil service report on alleged breaches of Covid regulations would prejudice a police investigation.
In other news:
The Equality and Human Rights Commision (EHRC) has come under fire from LGBTQ+ campaigners and Scottish First Minister Nicola Sturgeon for its response to the Scottish government’s plans to simplify the process for legal gender recognition, and the UK government consultation on banning conversion therapy. The EHRC said “more detailed consideration is required before any change is made” to the Gender Recognition Act 2004. Ms Sturgeon noted that this was a “significant change in position” for the EHRC and that she was concerned that the Commission’s response “doesn’t accurately characterise the impact of the Bill.” In its response to the consultation on conversion therapy, the EHRC said that a ban should initially focus on attempts to change sexual orientation, while a ban on “conversion therapy attempting to change a person to or from being transgender should follow, once more detailed and evidence-based proposals are available”. A clause to allow “informed consent” to conversion therapy in the Conversion Therapy (Prohibition) Bill has been condemned by activists but was not criticised in the EHRC’s response. LGBTQ+ charity Stonewall said the EHRC’s response disregarded the expert opinion on of the UN Independent Expert on Sexual Orientation and Gender Identity and violated the ‘Paris Principles’ of promoting and protecting human rights as a UN-accredited National Human Rights Institution.
The Joint Committee on Human Rights has launched its investigation into proposals to reform the Human Rights Act. The Committee will examine government proposals to replace the Human Rights Act with a “Bill of Rights”, which would reduce the impact that case law from European Court of Human Rights has on domestic law.
In the courts:
Pwr (Appellant) v Director of Public Prosecutions (Respondent) and Akdogan and another (Appellants) v Director of Public Prosecutions (Respondent) [2022] – this case concerned section 13(1) of the Terrorism Act 2000, which makes it a criminal offence for a person to display an article in public, in a way that arouses “reasonable suspicion that he is a member or supporter of a proscribed organisation”. The appellants had carried flags of the Kurdistan Workers Party (the PKK), a proscribed organisation, at a demonstration. The Supreme Court dismissed their appeals, finding that section 13(1) is: a) a strict liability offence, such that there is no necessary mental element beyond the defendant knowing they are displaying the relevant article; and (b) compatible with article 10 of the European Convention of Human Rights (ECHR). Section 13(1)’s interference with the Article 10 right to freedom of expression is justified by being prescribed by law; in pursuit of legitimate aims; and necessary in a democratic society and proportionate to its legitimate aims.
R (Binder, Eveleigh, Hon and Paulley) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin) – the High Court allowed a judicial review claim by four disabled adults and granted a declaration that the government’s National Disability Strategy is unlawful. While there was no common law or statutory duty on the defendants to consult before publishing the Strategy, the Court held that their “UK Disability Survey” amounted to a voluntary consultation (which the defendant denied), and as such the common law principles of consultation fairness (“the Gunning principles”) applied. The Survey breached the second Gunning principle to “enable intelligent consideration and response” due to its lack of information (it did not outline or allow for comments on specific policy proposals), and format (the questions were all multiple choice except four open-ended questions with word-limits). The Court rejected the Claimants’ additional submission that the defendant breached the Public Sector Equality Duty per section 149 of the Equality Act 2010.
R (D4) (Notice of Deprivation of Citizenship) v Secretary of State for the Home Department [2022] EWCA Civ 33 – ‘D4’ was a British and Pakistani dual citizen who has been detained at a camp in Syria for three years. On 27 December 2019 she was deprived of her British citizenship under Regulation 10(4) of the British Nationality (General) Regulations 2003, which permits the Home Secretary to “serve notice” of a deprivation of British citizenship merely by putting the notice on a person’s Home Office file. On 28 September her solicitors requested the Foreign Office’s assistance in repatriating and it was then that the deprivation of her citizenship was first communicated to either D4 or her advisors. This case was a judicial review of Regulation 10(4) and the Court of Appeal found the regulation ultra vires; it went beyond the Home Secretary’s powers under the British Nationality Act 1981 and was therefore unlawful. However, if the Nationality and Borders Bill is passed, it will remove the requirement to give notice if it is “in the public interest” and will apply to this case retrospectively, effectively making lawful D4’s deprivation of citizenship without personal notice. (see last week’s round-up for more on deprivation of citizenship)
On the UKHRB:
Nicola Barker looks at the Independent Human Rights Act Review and the proposed Bill of Rights
Sapan Maini-Thompson asks whether “perception-based recording” of hate crimes is compatible with freedom of speech
The mother of a British soldier who was killed in a roadside bomb while on duty in Iraq has received an apology from Defence Secretary Sir Michael Fallon. Sue Smith’s son, Pte Phillip Hewett, died while travelling on patrol in a lightly armoured “snatch” Land Rover in July 2005.
Following a settlement of the case, Sir Michael has written to Ms Smith:
“I would like to express directly to you my deepest sympathies and apologise for the delay, resulting in decisions taken at the time in bringing into service alternative protected vehicles which could have saved lives.”
What did Ms Smith allege?
The circumstances around Pte Hewett’s death have been the subject of litigation for the last 6 years.
Four defendants were acquitted by a jury in Bristol Crown Court following their trial for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721). The story has been widely covered elsewhere so I will limit this post to a discussion of the reference itself.
The application with which this reference was concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest, under the free speech Article 10, right to gather under Article 11, and the right to freedom of conscience under Article 9.
The Attorney General has the power to refer verdicts to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes are not perpetuated in the courts below.
It is important to note at the outset that this reference was not directed to the jury’s verdict itself. It was to clarify the law on public protest to avoid confusion.
The Court of Appeal has provided its own press summary of their decision. In the following paragraphs I gather together the salient observations in this decision.
Here at the UK Human Rights Blog, we love justice, and we also love JUSTICE. Let’s all go to their annual conference, 12 October 2015. All details here and below.
One of the highlights of the human rights lawyer’s calendar, the JUSTICE Annual Human Rights Conference offers a key opportunity to update your legal knowledge and gain valuable insight into the human rights issues of the year.
The Rt. Hon. Sir Brian Leveson and Natalie Lieven QC will be joining us as our keynote speakers and the programme for this year’s event will focus on the challenges facing practitioners and the wider public policy debate on human rights law in the UK.
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I have an opinion piece in this week’s Jewish Chronicle, 
Some exciting news.
Welcome back to the UK Human Rights Roundup, your regular high water mark of human rights news and views. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular breakfast cereal variety box of human rights news and views. The full list of links can be found 
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be 
Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment 
Here at the UK Human Rights Blog, we love justice, and we also love JUSTICE. Let’s all go to their annual conference, 12 October 2015. All details 
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