It has been a quiet week in the courts from a human rights perspective. The Supreme Court gave judgment on a divorce case and a social security fraud, and whilst the Court of Appeal and High Court were more forthcoming in terms of the number of decisions made, family law and commercial cases dominated. Legal buffs may however be interested to note Scales v Motor Insurers’ Bureau  EWHC 1747 (QB), in which the High Court applied Spanish law in a road traffic accident case, whilst celebrity watchers and students revising for their civil litigation exams may appreciate seeing how the court applied the test from Denton to grant Johnny Christopher Depp II relief from sanctions (who knew there was a Johnny Christopher Depp I?) – Depp v News Group Newspapers Ltd & Ors  EWHC 1734 (QB).
A quiet week in the courts did not however extend to a quiet week in the news…
MA and others (on the application of) v Secretary of State for Work and Pensions & Ors  EWHC 2213 (QB) (30 July 2013) – read judgment
The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.
This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ). These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities. Continue reading →
Along with many others, today I find myself emerging from an Olympic haze. And alongside that morning-after blur comes a nagging feeling that it is time to get back to blogging. Why not start with a man who has watched the last three Olympic Games during what the High Court describes as an “enormously lengthy” period of detention without charge, and whose last bail application was refused as it would be too difficult to keep track of him during the 2012 Olympics?
The last two or so weeks have been a wonderful time to be in London. Aside from the slightly naff closing ceremony, everything about the sporting carnival has been positive. It has also been a great time to be working in Temple, which has been converted into ‘Belgium House‘ for a fortnight.
Before returning to unlawful detention and Abu Qatada, a personal reflection. The first time I ever visited the Inner Temple was for a scholarship interview which took place on 9 July 2005. I will always remember the date because I had come to London for the interview on 6th July, the day on which the Games were awarded to London. The following day, I was on a bus on the way into town reading a newspaper headline about the Olympics, when I read on the BBC website that there had been a bomb on a tube. I jumped off the bus and flagged a taxi going the opposite direction, and the taxi driver told me he had just seen a bus blow up in Tavistock Square.
1 Crown Office Row’s Philippa Whipple QC was leading counsel to the Gibson Inquiry. She is not the writer of this post
The Justice Secretary has told Parliament that the Gibson Inquiry tasked with considering whether Britain was “implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” has been scrapped.
Ken Clarke announced that the police investigations into rendition, which were always to come before the formal start of the inquiry’s hearings, would take so long that the current inquiry could not continue. He said the Government remained committed to a judge-led inquiry, but presumably the current inquiry team could not be kept twiddling their collective thumbs for years longer.
The Crown Prosecution Service announced last week that it would not be bringing charges in relation to some of the historic allegations – particularly in relation to Binyam Mohammed and a 2002 incident at Bagram Air Base in Afghanistan. It would, however, begin to investigate more recent allegations in relation to Libya and “a number of further specific allegations of ill-treatment“. Continue reading →
On Tuesday the Court of Appeal handed down its judgment on David Miranda’s detention under the Terrorism Act 2000 and, while upholding the lawfulness of the detention in the immediate case, ruled that the stop powers under Schedule 7 of the Terrorism Act lack sufficient legal safeguards to be in line with Article 10.
Mr Miranda, the spouse of then-Guardian journalist Glenn Greenwald, was stopped and detained by the Metropolitan Police at Heathrow Airport on 18 August 2013 under paragraph 2(1) of Schedule 7 of the Terrorism Act 2000. He was questioned and items in his possession were taken by police, including encrypted material provided by Edward Snowden. Mr Miranda was detained for nine hours, the maximum period permitted at the time (since reduced to six hours). Continue reading →
I watched the BBC’s flagship political debate Question Timelast week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days.
It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the European Convention on Human Rights (ECHR) itself must seemingly be taken as a serious possibility, depending on the outcome of the next election. The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter?
Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment
I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.
But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?
Butt v Secretary of State for the Home Department  EWHC (Admin) 26 July 2017 – read judgment
Oliver Sanders and Amelia Walker acted for the Home Secretary in this case. They have nothing to do with the writing of this post.
The High Court has thrown out a number of challenges to the government’s efforts to prevent extremism on university platforms.
In 2015 the Home Office released guidance regarding its initiative to tackle extremism in universities under the Counter-Terrorism and Security Act 2015, CTSA. The press release referred to 70 events on campuses featuring “hate speakers”. The claimant Dr Butt was among six named as “expressing views contrary to British values”. Continue reading →
When can an agricultural landlord turf out his tenant farmer? The answer to this question has ebbed and flowed since the Second World War, but one element of the latest attempt by the Scottish Parliament to redress the balance in favour of tenants has just been declared incompatible with Article 1 of the 1st Protocol (A1P1) as offending landlords’ rights to property. The Supreme Court has so ruled, upholding the Second Division of the Court of Session’s ruling in March 2012.
The reasoning is not just of interest to agricultural lawyers either side of the border. But a brief summary of the laws is necessary in order to identify the invidiousness of the new law as identified by the Court – and hence its applicability to other circumstances.
As will be seen from my postscript, the decision of the court below to the same effect appears to have had tragic consequences.
David Pannick QC says in an article in the Times that the controversy surrounding the Binyam Mohammed case has been a disaster for the security services and has highlighted the need for more effective supervision:
The sorry saga of the Binyam Mohamed litigation has required the judiciary to strip away evasions and half-truths by the Security Services that have inflicted a body blow on their own reputation.
The courts, here and in the US, have performed their constitutional role of identifying and publicising unlawful acts of torture. There is now an urgent need for effective supervision and accountability of our intelligence services. Existing methods of parliamentary control have plainly been inadequate. As MI5’s in-house lawyer acknowledges in John le Carré’s novel The Russia House, his “old law tutor would have turned in his grave” at the lack of legal controls.
The full article is available here. You can read our analysis of the case here.
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs  EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
Welcome back to the UK Human Rights Roundup, your regular seasonal sack-load 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.
This week, bloggers tried to get to the bottom of the ‘forced caesarian’ case, a Supreme Court judge weighed in on the relationship between the UK and European law, and on Tuesday it’s the 65th birthday of the Universal Declaration of Human Rights.
Protocol 1 Art.1 of the European Convention on Human Rights provides:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The European Court of Human Rights has indicated that this Article contains three distinct rules ((1) Sporrong (2) Lonnroth v Sweden (1982) 5 EHRR 85):
(1) The general principle of peaceful enjoyment of property (first sentence of the first paragraph);
(2) The rule that any deprivation of possessions should be subject to certain conditions (second sentence, first paragraph);
(3) The principle that States are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose (second paragraph).
Peaceful enjoyment of possessions include the right of property (Marckx v Belgium (1979) 2 EHRR 330). “Possessions” are not limited to physical goods: in Gasus Dosier-und Fordertechnik GmbH v The Netherlands (1995) 20 EHRR 403 it was considered immaterial that the property in issue was fully owned by the applicant, or whether it simply had a security right in it (retention of title). But to qualify under this Article the right or interest must have an economic value, or be of a pecuniary nature. In addition to property, possessions include:
Company shares: Bramelid & Malmstrom v Sweden, (1982) 29 DR 64.
Patents: Smith Kline and French Laboratories Ltd v The Netherlands (1990) 66 DR 70;
Goodwill in business: Van Marle & Ors v The Netherlands (1986) 8 EHRR 483;
Licence to serve alcoholic beverages: Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309;
Ownership of a debt (where it has crystallised): Agneesens v Belgium (1998) 58 DR 63;
An award, of court or arbitration, which is final and enforceable with no right of appeal on the merits: (1) Stran Greek Refineries (2) Stratis Andreadis v Greece (1994) 19 EHRR 293 and Pressos Compania Naviera SA & 25 Ors v Belgium (1997) 21 EHRR 301;
Interests in a pension scheme Wessels-Begervoet v The Netherlands (1986) (Admissibility Decision Application No. 00034462/97 October 10 2000
An additional gloss has been given to the meaning of “possessions” under this Article by the Court of Appeal in Wilson v First Country Trust  3 WLR 42 2000 – these include the rights of a leader to enforce a regulated loan agreement under the Consumer Credit Act 1974.
More recently, the Supreme Court has ruled that pension scheme regulations in Northern Ireland that required that unmarried co-habiting partners to be nominated in order to be eligible for a survivor’s pension, was interference with the appellant’s right under this provision. The requirement could not be “objectively justified” for the purposes of art 14. There was no similar nomination requirement for married or civil partner survivors (Re an application by Brewster for Judicial Review (Northern Ireland)  UKSC 8).
There is no possession in an item where the link between the applicant’s payment and the ultimate value of the thing is not established, so where an applicant has made contributions to a social security scheme but there is no link between the contributions and the ultimate share claimed by the applicant, this does not come within the scope of Protocol 1 Art.1 (G v Austria (1984) 38 DR 84); the same applies to contributions to pension schemes: (see X v Netherlands (1972) 38 CD 9.)
Expectation of an inheritance could not constitute a possession under Protocol 1 Art.1 : Marckx v Belgium (1979) 2 EHRR 330.
A mere expectation that rates of fees would not be reduced by the law does not constitute a property right: Federal Republic of Germany Application No.00008410/78, (1979) 18 DR 170. Here the applicants, who were notaries, challenged regulations which obliged them to reduce fees for certain public bodies such as universities. The European Commission of Human Rights held that the claim for fees would only be considered as possessions when they came into existence on grounds of services rendered and on the basis of existing regulations.
In Matthews v MoD  3 All ER the Court of Appeal accepted that a right of action in tort was a possession.
As with the other qualified rights, most of the disputes in Article 1 Protocol 1 claims turn on the test of proportionality since the right to enjoyment of property is subject to many provisos and exceptions “in the public interest”. As a result the case law on A1P1 is a rich source of analysis on this question: see for example the Court of Appeal’s informative ruling in Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health  EWCA Civ 437 and Lord Laws LJ’s important dissent, discussed here.
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Perhaps unsurprisingly this provision is almost constantly in the news since it involves the core interests of the media, outraged by the development of the so-called “super-injunction” to prevent the reporting of “kiss-and-tell” stories in the celebrity sphere, the main source of profit for the printed press. The current headache for lawmakers and enforcers is how to regulate the dissemination of this kind of information on the internet, particularly social network sites such as Twitter. See our discussions on these issues here, here, here and here.
Although Article 10 guarantees the right to “receive information”, this Article does not require the State to provide access to information which is not already available (Leander v Sweden (1987)9 EHRR 433), although a relatively recent case suggests that the Strasbourg Court may be sympathetic to Article 10 challenges where a government has refused to provide information; in Matky v Czech Republic, application no. 19101/03, the Fifth Section of the Court suggested that an ecological NGO was entitled to access to information about nuclear power stations under Article 10. However this application was ultimately found to be manifestly ill-founded as declared the application manifestly ill-founded, as in the Court’s opinion the interference satisfied the requirements set forth in paragraph 2 of Article 2.
As we see, there are a number of permissible exceptions set out in this Article. Note that no measures in pursuit of these legitimate aims will be justified unless the interference with the individual’s freedom of expression has been “prescribed by law”, and the interfering measure is “proportionate” (see our discussion of these terms in the Article 8 section. Measures can be taken to limit freedom of expression in the interests of the following:
(1) National security, territorial integrity, public safety, the prevention of public disorder and crime ;
(2) The impartiality of the judiciary;
(3) The protection of health and morals;
(4) The protection of the reputation and rights of others
(5) The licensing of broadcasting enterprises.
Section 12 Human Rights Act 1998 provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered. See Cream Holdings and Imutran v Uncaged Campaigns Limited  EMLR 563 for Section 12 in application.
No interim order may be made that would infringe free speech rights without the respondent being present unless the applicant is able to furnish “compelling reasons” as to why the respondent should not be notified. The full impact of this section in injunction hearings was considered by the Court of Appeal in Douglas and Zeta Jones v Hello! Magazine, 8 May 2005 .
It is important to remember when considering the scope of Article 10 that Article 16 of the Convention also incorporated with the Human Rights Act provides:
Nothing in Articles Article 10, Article 11, and Article 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.
The usefulness of this provision should not be forgotten and it could in theory be used by the government to buttress the measures it wishes to take to combat incitement to arms, religious hatred etc.
Article 16 expressly authorises restrictions on the political activities of aliens even though they interfere with freedom of expression under Article 10 and other freedoms under the Convention.
Prime Minister David Cameron has been busy preparing the country for “painful” cuts to pensions, pay and benefits. In a recent Guardian Article, The changing face of human rights, Afua Hirsch comments with approval on the 2008 recommendation by the Joint Committee on Human Rights that a new UK bill of rights should include the rights to health, education, housing and an adequate standard of living. Rosalind English asks whether the time has indeed come for “economic” human rights.
Ms Hirsch cites a number of examples around the world where such “social and economic rights” have been used successfully to challenge government policy on the distribution of healthcare, housing and benefits. Why, then, she asks, is such an extension of our existing rights so strenuously resisted in this country?
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.