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Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.
Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.
As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.
Much of the case will be heard in private over the next week.
The UN General Assembly backed a resolution condemning Russia’s actions and calling for an end to the war on Thursday, the eve of the anniversary of the invasion. With 141 supporters, 32 abstentions and seven voting against, the resolution reiterated the UN’s support for Ukraine and called for a “comprehensive, just and lasting peace.” Abstentions included China, India and South Africa, while Russia, North Korea and Syria were among those voting against. General Assembly resolutions are not legally binding but carry great political weight, and the UN Security Council is obstructed from action by Russia’s veto. On the same day in Vienna, a large number of delegates walked out of a parliamentary assembly of the Organization for Security and Co-operation in Europe (OSCE) in protest against Austria’s decision to give visas to Russian officials.
Leading supermarkets in the UK have introduced customer limits on purchases of fruits and vegetables. According to the British Retail Consortium, the shortages are expected to last a few weeks until reliance on imports from Spain and north Africa is counteracted by the start of the UK growing season. Tom Bradshaw, one of the leaders of the National Farmers’ Union (NFU), has called for the UK to “take command” of its supply chains. Citing Brexit, the Ukraine War, and climate change, the NFU wants the government to use the powers granted it by the Agriculture Act 2020 to address exceptional market conditions.
The Marriage and Civil Partnership (Minimum Wage) Act comes into force on Monday. Campaigners argued that the previous position of the law, which permitted 16- and 17- year-olds to marry with parental consent, was being exploited to coerce young people into child marriages for religious or cultural reasons. The new law will automatically recognise those married under the age of 18 as victims of forced marriages, carrying a sentence of up to seven years in prison for those responsible. The legislation also applies to non-legally binding ceremonies. This law does not apply in Scotland and Northern Ireland, where the minimum marriage age will remain 16.
In other news
Ex-Hollywood producer Harvey Weinstein has been sentenced by a Los Angeles court to an additional 16 years in prison for rape. Weinstein was convicted of attacking an actress in a hotel room in February 2013. He denied the charge, telling the court his accuser was “an actress with the ability to turn on her tears” and begged for leniency: “please don’t sentence me to life in prison, I don’t deserve it.” The 70-year-old had already been serving a 23-year sentence in New York for another conviction.
Dominic Raab has announced that rules barring transgender women with male genitalia or those who had committed violent or sexual offences from female prisons in England and Wales apply from Monday. The news follows the recent case of Isla Bryson, the transgender woman convicted of two counts of rape who was subsequently remanded to a woman’s prison in Scotland, the media outcry against which prompted the Scottish Prison Service to announce an “urgent review” of transgender inmates.
Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here
On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.
BACKGROUND
S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.
The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.
Conor Monighan brings us the latest updates in human rights law
In the News:
The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal. Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.
The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service. The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.
In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”. Continue reading →
In Government of the United States v Julian Assange [2021] EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the ruling of Westminster Magistrates’ Court, thereby permitting the extradition of the WikiLeaks founder to the US where he faces criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.
The High Court held that diplomatic assurances given by the US government regarding Assange’s prospective detention conditions were sufficient to quash the original basis upon which his extradition was initially discharged, namely that his mental condition was such that it would be “oppressive” to extradite him, per s.91 Extradition Act 2003.
Laura Profumo brings us the latest human rights goings on.
In the News:
This afternoon, the new Conservative Government’s legislative plans were announced in the Queen’s Speech. Michael Gove, the recently appointed Justice Secretary, will have to defend his party’s intention to scrap the Human Rights Act, blunting the influence of Strasbourg jurisprudence. As Daniel Hannan observes, Gove faces a “different order of magnitude” in his new role, finding himself up against an “articulate and wealthy lobby” within the legal profession. An “elegant compromise” might be found, Hannan suggests, in amending our extant Bill of Rights to include ECHR freedoms, restoring “our sovereignty and our democracy”.
It is certainly clear that Gove will have to carefully pilot the reforms through Parliament. Lord Falconer cautions that the House of Lords, where the Conservatives don’t have a majority, may prove obstructive:
“If the Conservative measures strike at fundamental constitutional rights, the Lords will throw this back to the Commons”.
The backbencher minority of ‘Runnymede Tories’, forcefully headed by David Davis, will also seek to stall the Bill’s course. Yet, Matthew d’Ancona concedes, “if anyone has the intellectual firepower to square all the circles it is Gove”.
In brighter news, the Republic of Ireland has become the first country to legalise same-sex marriage through popular vote. Some 62% of the electorate voted in favour of the reform, with all but one of the Republic’s 43 constituencies voting Yes. The result comes just two decades after the Irish government decriminalised homosexuality, marking a milestone in Ireland’s divisive religious history. The Archbishop of Dublin, Diarmuid Martin, recognised the vote as a “social revolution”, which requires the Church to “have a reality check, not move into the denial of realities”.
In a prelude to the historical referendum, the ‘Gay Cake’ Case, which has gripped Northern Ireland for the last year, come to a close last week. In a clear decision, it was found that the Christian bakery’s refusal to make a campaign cake the LGBT support group, QueerSpace, amounted to direct discrimination on grounds of sexual orientation. The outcome has not been welcomed by all. TUV leader Jim Allister lamented it a “dark day for justice and religious freedom”, whilst Melanie McDonagh, writing in the Spectator, found the decision inversely “intolerant and discriminatory”, forcing a Presbyterian business to promulgate a message “at odds with their belief”. Yet talk of religious persecution is besides the point, argues academic Colin Murray. The case concerned the “ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium”. It was not, as McDonagh suggests, a case of cake artisans’ ‘right to ice’, but the right of the public to lawfully contract with a business, irrespective of “how that public is constituted”.
Following the decisive vote across the border yesterday, many hope that Northern Ireland, the only part of the United Kingdom where same-sex marriage is still prohibited, will follow suit. Deputy First Minister Martin McGuinness has advocated a referendum: “This is a matter of whether or not we want to live in a modern progressive society that respects minorities”. Now that Northern Ireland has their cake – it remains to be seen whether the idiom will ring true.
In Other News:
Haile v London Borough of Waltham Forest: The Supreme Court ruled that the appellant had not made herself intentionally homeless when, after learning that she was pregnant, she left her London hostel. As she would have been evicted from the hostel anyway, on giving birth to her child, the Court ruled in her favour. Her lawyer, Nathaniel Matthews, welcomed the decision as one in which “glorious common sense prevailed. Women who become homeless because they have become pregnant must be protected”.
Vladimir Putin has signed a bill which allows foreign NGOs to be banned from operating in Russia. The law will allow authorities to prosecute NGOs which are designated as ‘undesirable’ on national security grounds. Individuals working for such organisations could face fines, or up to six years’ imprisonment. Amnesty International has condemned the measure as part of the “ongoing draconian crackdown…squeezing the life out of civil society”.
In the Courts:
Identoba and Others v GeorgiaThe Georgian police failed to protect participants in a march against homophobia from violent attacks of counter-demonstrators. ECtHR held the police had violated the protestors’ Article 3 and 11 rights, in failing to take sufficient measures to prevent the attacks.
SS v the United Kingdom; F.A and Others v the United Kingdom A case concerning convicted prisoners’ entitlement to social security benefits was held to be inadmissible by ECtHR. The applicants were prisoners in psychiatric hospitals who complained that, under new 2006 regulations, denying them benefits paid to the other patients amounted to unjustified discrimination. The Court emphasised Contracting States’ margin of appreciation in social policy, finding that the differential treatment was not unreasonable, given that the applicants, whilst patients, were also convicted prisoners.
Gogitidze and Others v Georgia The ECtHR ruled that the forfeiture of a wrongfully acquired property was not in breach of the tenant’s right to peaceful enjoyment of their possessions, under Article 1 of Protocol No.1. As the property confiscated belonged to the former Deputy Minister of the Interior, the Court inquired whether a proportionate balance had been struck between the method of forfeiture and the public interest in combating political corruption. The domestic courts were held to have achieved such a balance.
Events:
‘Do we need a new Magna Carta?’ The Miriam Rothschild & John Foster Human Rights Trust, and University College London, are hosting a lecture given by Lord Lester QC, on alternatives to the embattled Human Rights Act. The event will take place at 6.15pm, 15th June, at the Institute of Child Health. Please RSVP to rsvplectureinvitation@gmail.com.If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor, Jim Duffy, at jim.duffy@1cor.com
Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.
Tomorrow, the Home Secretary will announce to Parliament plans to give judges guidance on how to interpret Article 8 ECHR (the right to private and family life) in foreign criminal deportation cases. There has been already significant speculation as to whether the long-heralded changes will make much or even any difference.
It is not yet clear whether the Home Secretary intends to restrict the use of Article 8 in foreign deportation cases completely, as suggested here, or rather attempt to tweak the way it is applied by judges. The latter is more likely.
We will report in full when the proposals are revealed. But in the meantime, a quick comment on the slightly odd coverage of the story in the press. For example, the BBC reports:
This has been a turbulent week for Brexit.
Despite gaining approval for his adapted version of Theresa May’s deal, Boris
Johnson has been unable to secure approval for his Brexit timetable, with a
narrow consensus in Parliament that the deal requires longer scrutiny.
Meanwhile, EU leaders have granted permission for a further extension to
Article 50 until 31st January 2020, in response to the letter sent
by the Prime Minister to comply with the Benn Act. Leaving on October 31st
is no longer possible; Parliament is preparing for a December general election.
Updated | Welcome back to the human rights roundup, your regular human rights bullet. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Wessen Jazrawi
In the news
Mr Cameron goes to Strasbourg
This week, the European Court of Human Rights released its 2011 annual report and Prime Minister David Cameron paid Strasbourg a visit, where (amongst other things) he accused the Court of having become a “small claims court”.
A recent decision of the High Court concerning the Manchester Arena Inquiry highlights an interesting question about public inquiries, the role of survivors and the protections offered by the European Convention.
A succinct summary of the decision and its context is set out by Matthew Hill here. As he explains, permission was refused on a number of grounds, including that the challenge was brought late. But it is the Court’s analysis of the obligations imposed by Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) which is of interest to this article.
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.
For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.
Things have been quiet recently on the Commission for a Bill of Rights front, with media attention focussed on the upcoming Brighton Conference on European Court of Human Rights reform and the growing controversy over the Justice and Security Green Paper. But this important Commission only has 10 months left to publish its report, and it should be courting public attention, not avoiding it.
There has been limited action on the Commission’s website, with publication of relatively illuminating minutes from the 15 November and 14 December meetings. The website has also published a list of all responses to the recent consultation. Apparently there were over 900 responses to the somewhat scanty discussion paper which was published last year.
Two suggestions. First, in my view, all of the responses should be published on the Commission’s website, not just a list of the respondees. I asked the Commission by email they would be doing so, and they responded:
Welcome back to the UK Human Rights Roundup, your regular glass menagerie 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 [note from Adam Wagner – a warm welcome to Celia Rooney, our new rounder upper]
This week, Chris Grayling and the Court of Justice go head to head over the domestic status of the Charter of Fundamental Rights, while the ghost of Winston Churchill comes back to haunt the ‘United States of Europe’ debate. Meanwhile, Theresa May’s plans to deprive terrorist suspects of their British citizenship are under fire, while calls for press accountability are repeated.
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Tomorrow, the Home Secretary 
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – 
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