Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.
We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).
On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.
That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.
I argued last week that the Commission should open up more, but leaked internal emails were not exactly what I had in mind.
The resignation is hardly a surprise. Pinto-Duschinsky’s relationship with the other Commissioners has been rocky from the start, and he has been unabashed about complaining publicly when he has felt his views were being ignored. When the Commission published its initial consultation document he instantly told the Daily Mail that he ”strongly regret[ed] the terms in which it has been presented.” He was concerned that the document ignored the extent to which the European Convention had undermined Parliamentary Sovereignty. However strong Pinto-Duschinsky’s views, this public airing of Commission laundry must have made very difficult to hold reasoned debates behind closed doors.
This is Part 3 of a three-part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 2 here.
There are at least four possible “ways forward” for the new law of privacy which has been developed by the courts over the past decade and which has, at least from the point of view of sections of the media, been very controversial. These four possibilities are as follows:
(1) Active steps could be taken to abolish the law of privacy and return to the pre-Human Rights Act position.
(2) The current “judge made” law of privacy could be replaced by a new “statutory tort” of invasion of privacy.
(3) A special “privacy regime” for the media could be established under a statutory regulator.
(4) “Steady as she goes” – the law of privacy could be left to develop in the current way – by the judges on the basis of the Article 8 and Article 10 case law.
Each of these possibilities gives rise to different issues and potential difficulties.
The rights of people with disabilities in the UK have come under scrutiny recently by both the Supreme Court and a UN Committee. On 9th November, the Supreme Court handed down judgment in a case concerning the ‘bedroom tax’. This judgment comes days after the UN Committee on Rights of Persons with Disabilities criticised the UK’s treatment of people with disabilities under recent welfare reforms, finding “grave and systematic violations of the rights of persons with disabilities.”
The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK.
by David Scott
Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side.
But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?
It has been widely reported that Learco Chindamo, who was convicted of killing headmaster Philip Lawrence in 1995, has been rearrested only months after being released from jail. The story has reopened a debate over the Human Rights Act, on the basis that it prevented Chindamo from being deported to his native Italy. But did it?
In fact, what the case really highlights is that the unpopularity of the Human Rights Act is in part due to inaccurate media reporting of human rights cases, even 10 years after it came into force.
The Telegraph reported at the end of last week that Frances Lawrence, Philip Lawrence’s widow, has urged the prime minister to act on his previous pledges to scrap the Human Rights Act, as
With the May 2015 General Election looming, the battle for the future of human rights in the UK is hotting up. The Prime Minister has just sacked his long-standing Attorney General apparently because he disagreed with a mooted Tory manifesto policy which would, he rightly suggested, breach the UK’s international law obligations.
Meanwhile, over on what used to be Fleet Street,we can expect plenty of human rights misinformation and misrepresentation, as per usual. The Sun, a longterm offender, has been at it again with two recent articles. I thought it would be useful to respond in a bit of detail as they contain a number of common misrepresentations. And because they are behind a paywall, the usual army of Twitter fact checkers are left somewhat powerless.
Who should decide questions of human rights, Parliament or the courts? Is there a democratic deficit in human rights? If so, how do we go about addressing it? These are just some of the many questions asked at the conference hosted by the Arts and Humanities Council on Redressing the Democratic Deficit in Human Rights.
This conference took place on 17 and 18 April and was timed to coincide with the Brighton Conference. It was also timed to coincide with the launch of “Parliament and Human Rights”, research undertaken by Paul Yowell and Hayley Hooper, both of Oxford, and Murray Hunt, legal advisor to the Joint Committee on Human Rights (“JCHR”).
The conference featured a variety of eminent speakers and some lively debate took place over the two days. David Feldman, first legal advisor to the JCHR, kicked off events yesterday with the quote (I paraphrase): “there is nothing so dangerous in Parliament as when everyone agrees”, indicating that this is what took place following 9/11, and it was due to this that the JCHR’s mission became clear.
The European Convention on Human Rights, which came into force on 3 September 1953, guarantees a range of political rights and freedoms of the individual against interference by the State. Before the incorporation of the Convention, individuals in the United Kingdom could only complain of unlawful interference with their Convention rights by lodging a petition with the European Commission of Human Rights in Strasbourg. That all changed on 2 October 2000 when the Human Rights Act 1998 came into force, allowing UK citizens to sue public bodies for breaches of their Convention rights in domestic courts.
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.
This week saw three new appointments to the UK Supreme Court, which has in turn prompted discussion of equality and diversity within the senior judiciary (unsurprisingly, all three of them are white, male and “of a certain age”), as well as Conservative warnings over withdrawal from the European Court of Human Rights.
Benkharbouche & Anor v Embassy of the Republic of Sudan  EWCA Civ 33, 5th February 2015 – read judgment
This judgment concerned the conjoined appeals of Ms. Benkharbouche and Ms. Janah which arose from employment law claims brought against, respectively, the Sudanese and Libyan embassies. Certain of their claims, such as those for unfair dismissal, were founded on domestic law. Others, such as those under the Working Time Regulations 1998, fell within the scope of EU law. All were met with pleas of state immunity under the State Immunity Act 1978.
The Court of Appeal’s judgment provides a neat illustration of the relative remedial potency, on the one hand of human rights claims based on the European Convention on Human Rights by way of the Human Rights Act 1998, and on the other, those based on the EU Charter of Fundamental Rights via the doctrine of ‘horizontal direct effect’. Continue reading →
Army generals are notorious for fighting the last war instead of the current one. Human rights campaigners may be in danger of the same mistake if they get their strategy wrong for the new coalition government.
The great civil liberties fight of the last decade centered on New Labour’s anti-terrorism measures. Keystone issues such as stop and search, 42-day detention without charge and control orders caught the public imagination and have been the subject of bitterly fought and largely successful campaigns by rights groups.
The other significant fights have been over the so-called surveillance state; for example CCTV, the DNA database and ASBOs, all of which are now being considered for reform by the new government.
On 24 March, The Dickson Poon School of Law, King’s College London hosted a public debate on ‘The Human Rights Act: the Bill of Rights for the 21st Century?’ at Inner Temple. The panellists were Dr Colm O’Cinneide, Mr Martin Howe QC, Lord Phillips of Worth Matravers, and Mr John Wadham. Professor Aileen McColgan chaired.
Lord Phillips began by reminding us that King John never intended to respect Magna Carta, and that its most iconic sections were not the most prominent in the original document. He went on to point out that the UK’s ‘motive in participating’ in the European Convention of Human Rights ‘was the belief that other members of the Council of Europe should be under the obligations that it imposed.’ A ‘groundswell of dissatisfaction’ with the working of the Convention had led to critics portraying the Human Rights Act today – rather like Magna Carta in its infancy — as a disturbance to an historical order. The British Bill of Rights now proposed by the Conservative Party was
intended, as I understand it, to give the Supreme Court, rather than the Strasbourg Court, the last word in the correct interpretation of the Human Rights Convention. I have yet to see a draft of this; but in principle I am not in favour…Under the scheme of the Convention it is ultimately for the Strasbourg court to give authoritative rulings on its effect. I emphasise the word “ultimately”. Before according the Strasbourg Court that last word, there is room for dialogue.
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