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As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:
Create a test of “serious harm” for statements to be considered defamatory.
Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.
By a narrow 4-3 majority, the Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review, despite a powerfully-drawn ‘ouster clause’ which sought to prevent the decisions of the Investigatory Powers Tribunal from being questioned by a court.
Lord Carnwarth, who delivered the majority judgement, noted the ‘obvious parallel’ with the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Turning to the ouster clause in the present case, he considered that ‘a more explicit formulation’ might have ousted the jurisdiction of the High Court to consider a challenge to a decision by the IPT, but that, such as it was, the clause was not sufficiently clear to do so.
Lord Carnwarth also stated that: ‘It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.’ Although it was not necessary to decide on the general lawfulness of ouster clauses, he saw ‘a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.’ Lord Lloyd-Jones, another of the Judges in the majority, remained neutral on this statement.
Lord Carnwarth’s ‘rule of law’ argument was echoed by Caroline Wilson Palow, Privacy International’s general counsel, and Simon Creighton, of Bhatt Murphy Solicitors, which acted for Privacy International. Megan Goulding, a lawyer at Liberty, which supported Privacy International, stated that the ouster clause was ‘not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.’
In contrast, Professor Richard Ekins, a Tutorial Fellow in constitutional law at Oxford University, has stated that the ruling ‘violated the sovereignty of parliament.’ Ekins credited the three dissenting judges for their willingness to ‘[give] effect to parliament’s authoritative choice’ to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services.
In the News
The foreign secretary, Jeremy Hunt, has appointed Rita French, formerly his principal private secretary, to a post as the UK’s first human rights ambassador. Hunt put the appointment implicitly in the context of Brexit, stating that ‘as the UK enters a new chapter in its history’ he will ensure human rights are not forgotten in the rush to secure desperately needed free trade deals. Shami Chakrabarti, shadow attorney general, made her skepticism clear: ‘Rita French’s task will be an uphill struggle in a party that has consistently campaigned to scrap human rights instruments and cosied up to every despot in the pursuit of trade.’
The appointment came shortly after Human Rights Watch published a 115-page report condemning the UK government for breaching its duty to protect citizens from hunger by pursuing ‘cruel and harmful policies’ with little regard for children living in poverty. While a government spokesperson dismissed the findings, school staff and food bank volunteers confirmed that the report tallied with their experiences.
On Wednesday, the defence secretary, Penny Mordaunt, announced ‘a statutory presumption against prosecution’ for alleged offences committed in the course of duty more than ten years ago, covering wars in Iraq and Afghanistan. Following the announcement, Mordaunt went further, stating that she would like to see the proposed exemption extended to period of the Troubles in Ireland. Mordaunt’s comments were quickly met with criticism from human rights groups, a string of Conservative MPs, Ireland’s deputy prime minister Simon Coveney, and Sinn Féinn’s deputy leader Michelle O’Neill. An editorial in The Independent argued that the move would set human rights back by decades, allowing ‘the UK [to] opt in and out of the ECHR, depending on whether it is at war,’ while Amnesty UK’s campaign manager for Northern Ireland argues that the move undermines victims’ ‘fundamental rights to justice.’
In Other News
Ukraine responded angrily after ministers of the Council of Europe voted overwhelmingly in favour of allowing Russia to ‘participate on an equal basis’ in the council’s committee of ministers and parliamentary assembly, five years after the country was stripped of its voting rights over the seizure of Crimea. Ukraine’s envoy to the Council stated that the decision was not ‘diplomacy’ but rather ‘a surrender’.
US President Donald Trump has outlined his ‘strongly pro-life’ views on abortion days after Alabama passed a law banning abortion in almost all cases. In a series of tweets, Mr Trump stated that he was against abortion except in cases of rape, incest or ‘protecting the life of the mother’. While Republicans eager to overturn the 1973 Roe v Wade ruling welcome the ban and Trump’s approbation of it, Democratic presidential candidate Elizabeth Warren characterised the prohibition as ‘dangerous and exceptionally cruel’, and Human Rights Watch described the legislation as ‘a shocking abdication of responsibility by Alabama law makers’.
In the Washington Times, Neil Bush called for the release of Marsha Lazareva, a prominent Russian businesswoman imprisoned in Kuwait since May 2018 after being found guilty of embezzling 17 million dinars from the Kuwaiti Port Authority. Her latest hearing has been delayed until 9 June, after the judge recused himself unexpectedly. The manner in which Lazareva was tried and sentenced has been criticised by a number of human rights groups and diplomatic figures, including the former US Representative Ed Royce. Louis Freeh, a former judge and Director of the FBI, expressed concern for Lazareva’s health and wellbeing, and called the refusal of the Kuwaiti authorities to release her on a $33 million cash bail something he had ‘never heard of’ in his years as a judge and advocate. Lord Carlile of Berriew QC, senior counsel for Lazareva, has said that the ‘expert auditor’ on whose testimony much of the evidence relied has since been charged with the forgery of the three documents on which he depended during the case.
In the Courts
R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21: The Supreme Court considered whether the revised benefit cap, introduced by the Welfare Reform and Work Act 2016, s8, to lone parents with children under two years old (i) unlawfully discriminates against parents and/or their children, contrary to ECHR Articles 14 and 8 and the UN Convention on the Rights of the Child Article 3, and/or (ii) is irrelevant. The court concluded, by a majority of 5-2, that the rule engaged ECHR Article 8, but could be justified because it was not manifestly without reasonable foundation. Lady Hale and Lord Kerr, dissenting, considered that a fair balance had not been struck.
Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818: The Court of Appeal dismissed an appeal for wrongful dismissal by a nursing sister employed by the Trust. The sister was a ‘committed Christian’ fired for breaching an undertaking not to have inappropriate religious discussion with patients. One of the patients who lodged a complain was told by Mrs Kuteh that if he prayed to God he would have a better chance of surviving a major surgery for bowel cancer which he was about to undergo. ‘Even having regard to the importance of the right to freedom of religion,’ the court concluded that the Employment Tribunal’s decision was ‘plainly correct’, and the Trust’s decision to dismiss Ms Kuteh for misconduct ‘fell within the reasonable band of responses’ in this case.
At first sight, a rather abstruse dispute, but the 63 page judgment of Henshaw J gives rise to a host of important and difficult human rights points. But his central conclusion is that a statute which was not challengeable at the time of its enactment became so, because of the subsequent evolution of the law, principally common law, to the detriment of insurers.
Sounds mildly counter-intuitive? Not, I think, so, when the story has unfolded.
Fountain pen on a blank page open on a diary book…
Tickle v Council of the Borough of North Tyneside and others [2015] EWHC 2991 (Fam) (19 October 2015) – read judgment
Before the court were cross applications by a journalist and the local authority regarding care proceedings which the former wished to report. The individual in question was a mother (representing herself in these proceedings) who had had a number of children taken into care in the past. Her life had been “blighted” historically by serious mental health problems which have at times made it unsafe for her to care for her children. At the time of this application, it seemed, those times appeared to be behind her. Be that as it may, she and her children had been through the care system on a number of occasions.
She had shared this experience on social media sites, and had described, in particular, how she fought for her youngest child (a child who was removed at birth) and how she eventually succeeded in having that child live with her. Bodey J, who had read some of her online articles, found them “balanced and responsible”. Continue reading →
Lord Judge, the Lord Chief Justice, has used the annual Judicial Studies Board (JSB) lecture to complain that the English courts were being influenced too heavily by judgments of the European Court of Human Rights (ECtHR).
This is becoming something of a tradition at the annual JSB lecture. Lord Hoffman used the same platform last year (read lecture here) to criticise the ECtHR, saying it had been “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.”
In this year’s lecture, Lord Judge suggested that “statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court” and that the Luxembourg-based ECtHR was encroaching on the legal territory of its Strasbourg cousin, the European Court of Justice.
The full lecture can be found here, or you can read more of the address after the page break below:
A new report has argued that the practice of turning back asylum seeker boats at sea is illegal under international law, and does not deter others from making the journey.
George Osborne is to announce the Government’s emergency budget today. Although the Government has been seeking to emphasise measures which will soften the blow to the poor, the fact remains that these are the biggest cuts in decades and that many will end up worse off, particularly if wages decrease and unemployment increases.
Update: The full budget can be downloaded here. The section on benefits starts at page 33.
The Government is to cut benefits by £11bn by 2014-15. The huge cost of benefits (“spending on social security and tax credits has increased by 45 per cent, around £60 billion, in real terms over the past 10 years.), the Chancellor told Parliament, were one of the reasons why there isn’t any more money in the Government coffers. The Health in Pregnancy grant will be abolished from 2011 and Sure Start will be limited. Child Benefit is to be frozen for the next three years. Disability Living Allowance will be restricted by a new medical check from 2013. The Chancellor has said he will “increase the incentives to work” and will reassess benefits on the basis of the Consumer Price Index rather than the Retail Price Index. Housing benefit will be limited significantly and maximum limits on what can be claimed are to be introduced for the first time.
Rosalind English posted two weeks ago on whether budget cuts will lead to revised calls for “socio-economic” human rights; a concept which is as old as the European Convention on Human Rights and just as controversial. We will now revisit that post.
The Court of Appeal in Re D has overturned final care and placement orders made at an Issues Resolution Hearing (“IRH”), stating that judges must give clear, reasoned findings on the threshold criteria under section 31(2) Children Act 1989 (“CA 1989”), even where proceedings are uncontested or parents are absent.
In delivering the judgment, Cobb LJ, with whom Baker LJ and Miles LJ agreed, criticised the short form reasoning used by the Family Court and stressed the need for transparent judicial decision-making when the State intervenes in family life under Article 8 of the European Convention on Human Rights (“ECHR”).
Updated | Recent weeks have seen some interesting developments in the debate over freedom of expression of the press.
Last week saw a decision of Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers B.V. v. the Netherlands. The case related to the protection of journalistic sources, and has been described as a “victory for press freedom”.
The court held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. The Dutch prosecutors in the case, which had ordered the production of a CD-ROM containing potentially incriminating photographs of participants in an illegal race, had therefore breached Article 10 (freedom of expression).
We are delighted to announce that the UK Human Rights Blog by 1 Crown Office Row chambers has been shortlisted for the JUSTICE Human Rights Award 2010.
Also shortlisted are Reprieve and Bail for Immigration Detainees. The Human Rights Awards have been held each December since 2001 to commemorate Human Rights Day. As described by JUSTICE, the awards aim to recognise and encourage individuals and organisations whose work is dedicated to protecting and promoting the rights of others. Last year’s winner was the Gurkhas Justice Campaign. A full list of previous winners can be found here.
Welcome back to the UK Human Rights Roundup, your regular tasting menu 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.
With an upcoming anniversary, the role of the Lord Chancellor (and, of course, his reforms) has been under scrutiny. Further, the new Defamation Act is looked at in more detail, civil liberties are abused and war crimes resurface in a number of ways. And, the gay marriage bill continues on its tumultuous journey to the House of Lords.
There is a lot in the bill. In terms of its long term effect on the justice system, the most important parts relate to legal aid and litigation funding; that is, the options available to claimants to fund their cases – for example, no-win-no-fee arrangements or government funding. The reforms have been long-heralded, and the government has now responded to its consultations on both (see here for legal aid and here for litigation funding).
Almost ten years after the death of Rachel Corrie on 16 March 2003, her case still raises troubling questions. How was a 23-year-old protester killed by an Israeli military bulldozer? Did the driver do it deliberately, as the family have claimed? Were the Israel Defence Forces (IDF) responsible in some other way?
Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).
I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.
With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.
By all accounts, it has been a gloomy year for access to justice. The legal aid budget is to be reduced by £350m and state assistance has effectively disappeared in non-criminal cases. The overall justice budget, which is already low by international standards, is to be cut by a further 23%. But believe it or not, there may be reasons to be cheerful.
In the virtual world, legal blogs are becoming an established voice in the UK legal community and the flourishing blogosphere has given the public a lively, accessible and most importantly free new way of engaging with the law. With legal aid becoming scarcer and Citizens Advice Bureaus losing their funding, free information services such can be the last resort for those who seek legal help without having to pay for a lawyer.
But none of these services would exist without their hidden backbone: BAILII. To that end, when Legal Week published its excellent review of legal blogging last month, the failure to mention BAILII caused a min-revolution from a gaggle of legal bloggers in the comments section.
Last week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the Justice and Security Act 2013 (JSA), as he is required to do annually under the Act. As the first and only official consolidated presentation of how the new CMP regime is being used, this two-page written ministerial statement warrants close attention.
The Secretary of State’s report provides only numbers. In the Bingham Centre’s Review of the First Report by the Secretary of State, we have tried to match cases to those numbers and, when read in light of the cases, have found good reasons to be concern about the difficulty of verifying the accuracy of the report, the ways that CMPs are being used, and the adequacy of the reporting requirements.
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As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
Welcome back to the UK Human Rights Roundup, your regular tasting menu of human rights news. The full list of links can be found 
Almost ten years after the death of 
Last week Justice Secretary Chris Grayling reported on how often closed material proceedings (CMPs) have been sought under the 
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