These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.
After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.
In the week that saw the UK Human Rights Blog reach half a million hits, we welcome you back to 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. You can also find our table of human rights cases here.
A cross-party group of MPs is seeking to put an end to indefinite detentionin immigration centres. Led by Harriet Harman MP, the Chair of the Joint Committee on Human Rights, the group are backing an amendment to the Immigration and Social Security Coordination (EU Withdrawal) Bill, which will make it illegal for people to be held for more than 28 days in an immigration detention centre, unless a judge issues a 28-day extension.
The Human Rights group Liberty has published two important reports. The first report highlights the failings of the UK military justice system, including a lack of transparency and a practice of downgrading offences to as to deal with them internally; the report recommends a new independent supervisory body for the Service Police. In connection with the report, Liberty has launched an Armed Forces Human Rights Helpline.
The second Liberty report evaluates the use of ‘predictive mapping’ by the police to identify crime hotspots and to conduct ‘individual risk assessments’. The report concludes that this system threatens privacy and freedom of expression, and encourages discrimination and racial profiling.
“In the end, we will remember not the words of our enemies, but the silence of our friends” said Martin Luther King in the context of White America’s silence with respect to the struggle for civil rights. The Prime Minister considers it relevant that the alleged murder of George Floyd occurred thousands of miles away – “in another jurisdiction” – yet the former colonies that now compose the United States of America is a jurisdiction which owes its common law legal system and heritage to the United Kingdom. St. George Tucker, in the appendix to his 1803 edition of Blackstone’s Commentaries, wrote that
the common law of England, and every statute of that Kingdom, made for the security of the life, liberty, or property of the subject … were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein .
The Black Lives Matter movement illuminates an incontrovertible chasm in the application of the rule of law in liberal democracy. The basic premise of the rule of law, which in Joseph Raz’s conception is that it should be capable of guiding behaviour, includes the necessary restriction on crime-preventing agencies from perverting the law. A society in which those tasked with upholding and applying the law – under the powers of stop-and-search and arrest – are instead themselves regular perpetrators of racist discrimination and violence, is one in which the rule of law can become a randomised hope that is more or less likely to be realised depending on the race of the citizen in question.
Welcome back to the UK Human Rights Roundup, your regular LS Lowry matchstick panorama of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
With the continuing progress of the Marriage (Same Sex Couples) Bill through Parliament, focus was turned this week to the same issue in the USA. Meanwhile, it was extra-judicial scrutiny being meted upon Chris Grayling’s money-making proposals, and the Sun was censured by the PCC over an EU-ECtHR mix-up.
The New Zealand Parliament seems about to drop that country’s commitment to the rule of law from the Act underpinning the judicial branch. Retiring Supreme Court judge (and former Solicitor-General) Sir John McGrath thinks that’s worrying. He’s right. There’s still time for ex-pat Kiwis to lobby the Minister of Justice.
One of the first legislative measures of the young South Pacific colony, back in 1841, drafted in part by the Birmingham born first Chief Justice, Sir William Martin, was the creation of what is now known as the High Court of New Zealand.
That legislation has been updated over the years, significantly in the 1880s before consolidation in 1908 in the Judicature Act. That Act was overseen by the country’s fourth Chief Justice, the remarkable, Shetland born, Sir Robert Stout. Continue reading →
Re B’s application  NIQB 76 was a challenge to a decision to prosecute a soldier for offences going back to 1972. Part of the small but politically divisive cohort of prosecutions arising out of the Troubles in Northern Ireland, Re B provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences.
“B” is a former soldier of the British Army who had been serving in Northern Ireland. On 31 July 1972, the Army launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had become highly problematic and dangerous for security forces at the time.
In the early hours of 31 July 1972, B was part of a company of soldiers deployed in the Creggan Heights area of Derry. He was armed with a 7.62 x 51 mm calibre General Purpose Machine Gun. At around this time, three local people were also in the area: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At some time shortly after 4.15 am, there was a burst of machine gun fire. When it stopped, Daniel Hegarty lay dead on the street, having been shot twice in the head. He was 15 years old. Christopher Hegarty was also wounded in the shooting, but survived.
Welcome back to the UK Human Rights Roundup, your regular full brass band 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.
This week, Lord Neuberger implied that even if the Human Rights Act were to be abolished, the court would continue to uphold human rights, perhaps foreshadowing the Supreme Court’s decision in Osborn. Meanwhile, the controversial Immigration Bill now has its overarching documents available, LSE are looking to create a written constitution and the Daily Mail are in trouble, again.
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 saw some commentary on Lord Sumption’s latest speech, which may indicate further advances into the domain of the government by the judges, and on secret justice and vicarious liability for Catholic priests. There have also been two important new decisions on child tax credit for separated parents and when costs will be awarded in settled judicial reviews under the Housing Act.
UKHRB Seminar Podcasts Available
The podcasts and full presentations by 1 Crown Office Row barristers Shaheen Rahman, Adam Wagner and Matthew Hill for UKHRB’s million-hit seminar are now available. The major topics: the Brighton Declaration, Article 8 and when States are complicit in torture. Check them out here if you missed the seminar.
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
(b) to have adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
There is no directly corresponding provision in the EU Charter of Fundamental Rights. Article 20 – the right to equality before the law – is more related to ECHR Art.14, and Article 47, the right to an effective remedy and to a fair trial is based on Art. 13 ECHR which guarantees the right to an effective remedy for human rights violations. However, it has been argued before the European Court of Justice that Article 6 ECHR and Article 47 contain effectively the same fair trial rights (see David Hart’s post on this issue).
The protection of Article 6 ECHR only extends to those disputes that concern a “civil right” (as well of course to the determination of any criminal charge against an individual). The jurisprudence on what does or does not constitute a “civil right” is complex and lengthy but a general rule is that the characterisation of the matter in domestic law is not determinative – Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 – and while such civil rights could be brought into play either by direct challenge or by administrative action, it was the nature and purpose of the administrative action that determined whether its impact on private law rights was such that a legal challenge involved a determination of civil rights. In R(Begum) v Tower Hamlets London Borough Council  2 AC 430 the House of Lords was prepared to assume that a decision as to housing for a homeless person did involve a “civil right” but in the more recent case of Ali v Birmingham City Council  2 AC 39 the Supreme Court confronted that question and decided that it did not.
A parent’s rights to contact with, and custody of, a child constitute “civil rights” for the purposes of Art.6. This means that they must have a fair hearing before an independent and impartial tribunal. When a mother was refused access to her child by the local authority, and she was unable to challenge that refusal in court, there was found to be a breach of her Art. 6 rights (although the case was settled after it was declared admissible in Strasbourg: Application no. 11468/85, 15 December 1986). A more recent case against Croatia indicated that exclusion of a mother from the adoption (X v Croatia, 17 July 2008).
It is hardly surprising that domestic courts encounter some confusion when they come to determine whether a matter involves a “civil right” or not; Strasbourg case law on the point is far from clear. In trying to determine whether a freezing order on a claimant’s assets affected his civil rights, Sedley LJ observed that the Strasbourg Court is very clear about the concept having an autonomous meaning, but “What is neither certain nor clear is what that meaning is.” (Maftah v FCO  EWCA Civ 350, and see our post on this case here)
Particular difficulties have been caused by the fast-changing Strasbourg case law on employment disputes involving public servants, which until recently have been excluded from the purview of Article 6. The Court decided in Pellegrin v France (2001) 31 EHRR not to allow administrative servants the guarantees of Article 6 because their employment involves important state imperatives, but defining this kind of employment is far from easy, as was demonstrated by the case of an army chaplain who sought redress for alleged unfairness; after considering the authorities Nichol J found that the claimant fell within the Pellegrin exception under the test laid down in Eskelinen v Finland (2007). See our discussion on this judgment here.
The requirements of fairness imposed on Member States by this Article apply to civil and criminal litigation. Art.6 , taken as a whole, has been held to ensure not only a fair trial once litigation is under way but to impose an obligation on States to ensure access to justice (Golder v United Kingdom (1975) 1 EHRR 524: interference with a prisoner’s correspondence with a solicitor constituted a breach of his right of access to court under Art.6 , even though litigation was not pending). Most recent litigation has concerned the matter of costs; whilst the right of access to justice is implied in Article 6(1), the original case on costs, Airey v Ireland (1979), has not been interpreted to impose on states an obligation to provide a legal aid scheme. Legal aid constitutes one avenue to justice but there are others, such as the availability of representation under a contingent or conditional fee agreement. Legal representation is not considered indispensable in all cases. Where there are no particularly complicated points of law, the state is not compelled to provide a publicly funded lawyer (HH (Iran) v Secretary of State for the Home Department  EWCA Civ 504 ). In environmental challenges, on the other hand, the right of access to (affordable) access coincides with the obligation on states imposed by the Aarhus Convention to avoid prohibitive expense where individuals or groups ask the courts to enforce environmental law. The Aarhus Convention is part of EU law therefore may be relied upon in UK courts, until such time as the UK’s departure from the EU is finalised.
The requirement that the trial be conducted by an “independent and impartial tribunal” is satisfied if an internal disciplinary appeals board consists equally of members of the relevant profession and members of the judiciary: Le Compte, Van Leuven and De Meyere v Belgium (1981)4 EHRR 1.
At the Strasbourg level the most litigated requirement in Art.6 is the obligation on States to ensure that proceedings do not exceed a “reasonable time”. The circumstances of the case may determine the importance of expedition; in AIDS cases the Court’s approach has been stricter than in other areas, since the rapid dispatch of compensation claims is essential in respect to terminally ill patients (X v France (1992)14 EHRR 483). The Court has also take a strict approach to delay in child care cases where the child may have bonded with its new carers: H v United Kingdom (1987) 10 EHRR 95.
The requirement of a public hearing relates to proceedings in courts of first and only instance. The failure to provide a public hearing will not be cured by making the appeal proceedings public where the case is not reheard on its merits: Le Compte .
If the initial hearing (eg by a regulator) does not fulfil the requirements of independence and impartiality, appeal may cure the defect: Bryan v United Kingdom (1996). In any event if the matter is essentially one of policy, the detailed requirements of Art.6 do not necessarily apply: see the House of Lords ruling in Alconbury (2001) and the line of cases preceding the House of Lords’ analysis in R(Begum) v Tower Hamlets London Borough Council .In many administrative fields, such as planning, an administrator may be decision-maker, and not “an independent..tribunal” within the meaning of Article 6(1), but the process will be Article 6(1) compliant, if an aggrieved party has a right of appeal or review from that decision before such a tribunal.
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc  EWHC 8 (Admin) – read judgment
Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.
The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.
Welcome back to the UK Human Rights Roundup, your regular bustling bonanza 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 Sarina Kidd.
After a long wait, the European Court of Human Rights delivered its judgment on state immunity in civil proceedings in Jones and Others v UK. Meanwhile, an atheist has been granted asylum on religious grounds and the Supreme Court ruled that a child’s views are relevant to the evaluation of their habitual residence.
The Prime Minister’s recent decision to delay plans to lift coronavirus restrictions by a month has been met with criticism among some legal commentators. The removal of restrictions is now due to take place on 19 July, instead of 21 June. The new deadline was described by the PM as a “terminus date” after which we must “learn to live with Covid”.
In his announcement, the Prime Minister cited the spread of the highly transmissible Delta variant, which now accounts for more than 90% of cases in the UK, and promised to use the extra time to accelerate the vaccination programme. New analysis by Public Health England shows for the first time that two doses are highly effective against hospitalisation from the variant. More than half of UK adults have had their second jab, including 91% of people over 50, and people as young as 18 will be invited to book a jab from the end of the week.
Former Supreme Court Justice Lord Sumption, a prominent critic of the government’s lockdown measures, called the continued lockdown “wicked” and raised the “extreme example” of “Nazi race laws” in arguing that there was no moral obligation to comply with certain laws. In response, barrister Adam Wagner quipped that Lord Sumption’s comments represented “the best case for his own argument that judges should not get involved in politics.”
Elsewhere, however, Wagner acknowledged that the courts have been reluctant to intervene with Covid restrictions, but suggested that at this stage a legal challenge to a refusal to allow a business such as a nightclub to open to double vaccinated customers might be effective. Wagner suggested that “the continued closure of a small number of businesses when the balancing factors have radically changed due to vaccination” might engage Article 1 of protocol 1 of the European Convention on Human Rights, which requires any interference with the ‘peaceful enjoyment of property’ to be proportionate. The delay is predicted to cost UK hospitality £3bn in lost sales and have a “critical impact on struggling businesses.
The announcement was widely anticipated and the public response has been understated. However, it remains to be seen whether the midsummer “terminus date” will truly put lockdowns behind us once we enter the darker, colder months of this pandemic’s second year.
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