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In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,
These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.
The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.
R (on the application of ASO MOHAMMED) v CHIEF CONSTABLE OF WEST MIDLANDS [2010] EWHC 1228 (Admin) – Read Judgment
A man who was arrested and cautioned for taking naked pictures of his girlfriend’s child has had his caution quashed and has been awarded £500 damages under the Human Rights Act. The case demonstrates that human rights claims can be successful against the police, and raises questions as to whether sex offender laws are being used overzealously.
We posted last month on the difficulty of bringing human rights claims when the police have made mistakes. This case provides an example of where human rights law can assist, and demonstrates what kinds of questions a court must ask itself before awarding damages under section 8 of the Human Rights Act 1998.
It’ll all be over by Christmas: that’s what the coalition promised when it established the Commission on a Bill of Rights to, among other things:
… investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties.
With less than four months to go, it seems a good time to reflect upon its work. My premise is that the process by which a bill of rights is created is as important as the outcome if the bill is to enjoy longevity and democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation. This lesson has been learned in contexts from Northern Ireland to Australia, where energetic consultation processes were designed using community organising techniques, televised hearings, the internet, social networking and other creative forms of public engagement. These are explored in research I conducted for the Equality and Human Rights Commission ahead of the 2010 general election.
Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.
Strasbourg popping up in various places in the human rights news this week: a couple of important decisions, as well as some broader reporting on the UK’s human rights performance this year. Meanwhile, the battle between the Home Secretary and the immigration judges continues; and the US Supreme Courts turn away a foreign human rights claim.
It’s time to tell the untold story of the Human Rights Act.
With the post-election dust barely settled, the Human Rights Act is firmly in the Conservatives’ sights. Caught in the crosshairs is section 2 HRA, which requires UK courts to take into account, but not necessarily follow, the case law of the European Court of Human Rights.
Also under fire is Article 46 of the European Convention, which makes Strasbourg judgments against the UK binding upon it in international law. This much is clear from the ‘Grayling paper’ of October 2014, the Conservative manifesto, remarks made by Lord Faulks in the pre-election Justice debate (analysed here by Mark Elliott), and post-election comments by David Cameron.
Absent from this debate is the fate of other provisions of the HRA, among them section 6, which requires public authorities to act compatibly with Convention rights unless primary legislation requires otherwise, together with remedies for breach provided for in sections 7 and 8. Continue reading →
Someone pointed out to me yesterday that our blog roll, that is our list of links to other sites, had disappeared. To my horror, they were right, and to my double horror, it turned out that the list of links was woefully inadequate.
So, the much-improved list is back, a bit lower down on the right. And below is a list with some short descriptions of the links. I have tried to limit the list to sites relevant to legal blogging and (to a lesser extent, because there are so many) human rights: for a much better roundup of the state of legal blogging in the UK, please read the almost impossibly comprehensive UK Blawg Roundup #6 by Brian Inkster.
Also, if you think you or someone else should be on this list, please let me know via the contact tab above. And the next #Lawblogs event is on 19 May at 6:30pm at the Law Society – details this week on how to reserve your place.
Yesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.
At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” – politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment
The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest:
1. is there a duty on the state to tell someone of their legal rights against the state?
2. should domestic human rights case law ever go wider than its Strasbourg equivalent?
In a major speech, he said that when considering questions of attitude and behaviour, “we inevitably come to the question of the Human Rights Act and the culture associated with it“. What is “exerting such a corrosive influence on behaviour and morality“? No less than “the twisting and misrepresenting of human rights in a way that has undermined personal responsibility“.
yes, indeed, and from today’s perspective, there is no obvious way through that impasse;
(ii) carbon emissions cannot possibly be stalled or reversed until our politicians recognise that continued economic growth is inconsistent with a long-term climate change strategy;
many would agree that we can spend a bit of time deck-chair re-arranging or limiting increases in emissions, but the time will come when the world economies have to stop growing;
(iii) if that direction is not going to come from our politicians, then
those political processes are clearly not fit for purpose.
Does this mean that democracy has failed, and must be sacrificed for authoritarian solutions? The solution may in fact be the polar opposite. A system where failing governance procedures are forced to think long-term does not necessarily require anti-democratic “climate tzars”. Instead, this revolution can be hyper-democratic and guided by human rights.
Climate change represents an enormous threat to a whole host of human rights: the right to food, the right to water and sanitation, the right to development. There is therefore huge scope for human rights courts and non-judicial human rights bodies to treat climate change as the immediate threat to human rights that it is. Such bodies could therefore take government policy to task when it is too short-sighted, too unambitious, or too narrowly focused on its own constituents at the expense of those elsewhere. Fossil fuel mining, deforestation, the disturbance of carbon sinks, and the degradation of the oceans are developments that can be blocked on human rights grounds.
[Updated] When blogging about the Great Strasbourg Debate, Adam Wagner recently reflected that he and I are”good cop, bad cop”. No prizes for guessing who plays which role.
Anyway, for what it’s worth, here are a few pensées on the recent news that the Daily Telegraph is backing a reform campaign (see Adam’s post on this). Or rather, let’s start with Charles Darwin, who observed that the human animal is capable of continual extension in the objects of his “social instincts and sympathies” from the time when he had regard only for himself and his kin:
… later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellowmen’, [then] ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals.
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.
In its foreign policy, the UK Government is a keen advocate of national human rights institutions (NHRI’s). The Brighton Declaration, drafted by the UK, encourages Council of Europe States to consider ‘the establishment, if they have not already done so, of an independent National Human Rights Institution’. In June 2012 the UK signed a UN General Assembly resolution‘Reaffirming the important role that such national institutions play and will continue to play.’
Yet at the same time, Navi Pillay, UN High Commissioner for Human Rights wrote to Theresa May MP raising concerns about proposals to reform Britain’s own NHRI, the Equality and Human Rights Commission (EHRC):
While fully respecting your Government’s priority to improve EHRC’s financial and operative performance as a public body, I would like to call on your Government to review some of the proposals with a view to preserving EHRC’s independence and to ensuring its continued compliance with the (Paris) Principles.
Welcome back to the UK Human Rights Roundup, your regular winter wonderland 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.
Also, on Monday 8 December (busy week!), Adam is speaking at the Human Rights Lawyers Association event – Regional Human Rights Systems: Under Siege, along with Prof. Douglass Cassel (University of Notre Dame), Jessica Simor QC (Matrix) and Dr Michael Pinto-Duschinsky (Policy Exchange).
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 the Commission on a Bill of Rights reported its findings, and commentary on the report has dominated the blogoshpere. We also have some analysis on the latest developments in the Hillsborough saga, analysis of the Redfearn (the BNP bus driver case) case and comments on prosecutions involving social media.
You may also notice that the UK Human Rights Blog has a slightly refreshed design – please do send us your comments if you have any.
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It’ll all be over by Christmas: that’s what the coalition promised when it established the 
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found 
Someone pointed out to me yesterday that our blog roll, that is our list of links to other sites, had disappeared. To my horror, they were right, and to my double horror, it turned out that the list of links was woefully inadequate. 
Yesterday 
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 –
Many explanations
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Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
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