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Welcome back to the UK Human Rights Roundup, your regular winter wonderland 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.
This week, equality issues dominate the headlines, while elsewhere judicial heavyweights throw their views into the ring on the institutional question of who should have the final say on issues involving human rights.
R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here
Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.
This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal, established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal. Continue reading →
In this guest article, Dr Linda Roland Danil argues that a new international agreement is needed to prevent us from sleepwalking into serious trouble.
In 2015, 196 Parties came together and agreed to the Paris Agreement, under which they pledged to limit global warming to 1.5 to 2 degrees Celsius above pre-industrial levels. But the problem is that the Paris Agreement does not contain quantified, legally-binding obligations for the reduction of emissions. It also has no enforcement mechanism, such as an international tribunal. Instead, countries prepare their own national emissions targets – so-called Intended Nationally Determined Contributions or INDC’s – and report to each other on how well they are doing to implement their targets.
The Paris Agreement was undoubtedly an achievement in the realm of international climate negotiations, and although the Trump administration has notoriously recently pledged to withdraw from the Agreement, a withdrawal which cannot take effect until late 2020. 196 Parties, at different stages of economic development, and within a conflicting political context, all agreed on the importance of tackling the threat of anthropogenic global warming.
However, the Paris Agreement’s targets are simply not being met, with the national pledges by the signatory Parties having recently been argued to bring about only a third of the reduction of emissions by 2030 that is required. Continue reading →
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.
The ECHR’s Additional Protocols 4, 7 and 12 have never been ratified by the UK and are not included in the schedule to the Human Rights Act 1998. This post suggests that the new government remedy this. It also sets out part of the history to the Additional Protocols, what the rights in those Protocols include, a summary of the relevant jurisprudence and a brief note of what effect they might have in the UK.
In the run up to the 1997 general election and during the drafting of the Labour Party’s policy on what was to become the Human Rights Bill there were discussions within the Shadow Cabinet about whether or not the remaining Protocols 4, 6 and 7 to the European Convention on Human Rights that, were not currently binding on the UK as a matter of international law, should be signed and ratified and, as a result, bind the UK at an international level.
At the time the Labour Government said ‘It will be possible to ratify Protocol 4 only if the potential conflicts with our domestic laws can be resolved. This remains under consideration but we do not propose to ratify Protocol 4 at present.’[1] The then government had concerns that Articles 2 and 3 of Protocol 4 may confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have a right to reside in the UK.[2] In a subsequent Joint Committee on Human Rights report, the Committee noted that the terms of Article 2 of Protocol 4 are ‘substantially similar to those of Article 12 ICCPR, which the UK has ratified subject to reservations regarding disciplinary procedures for members of the armed forces, and regarding nationals of dependent territories and the right to enter and remain in the UK and each of the dependent territories.’[3]
In contrast, it was eventually agreed by the new Labour Government that Protocol 7 should be ratified and added to Schedule 1 of the Human Rights Act:
“4.15 In general, the provisions of Protocol 7 reflect principles already inherent in our law. In view of concerns in some of these areas in recent years, the Government believes that it would be particularly helpful to give these important principles the same legal status as other rights in the Convention by ratifying and incorporating Protocol 7. There is, however, a difficulty with this because a few provisions of our domestic law, for example in relation to the property rights of spouses, could not be interpreted in a way which is compatible with Protocol 7. The Government intends to legislate to remove these inconsistencies, when a suitable opportunity occurs, and then to sign and ratify the Protocol.
4.16 The Secretary of State will be able to amend the Human Rights Act by Order so as to insert into it the rights contained in any Protocols to the Convention which the United Kingdom ratifies in future. The Order will be subject to approval by both Houses of Parliament. The Bill also enables any reservation to a Protocol to be added, but as with the existing reservation it will have to be reviewed every five years if not withdrawn earlier.”[4]
Changes which resulted in the ability to comply with the provision of equality between spouses in Article 5 of Protocol 7, were only made in 2010.[5] However, once these changes were made, the 2010 election came along and Labour was out of office. Protocol 7 remains unratified.
Procedural safeguards relating to the expulsion of aliens
Right of appeal in criminal matters
Compensation for wrongful conviction
Right not to be tried or punished twice
Equality between spouses
The right in Protocol 12
Any right set out in law shall be secured without discrimination
Protocol 4 and 7 add rights to the ECHR, at least in part, to make up for deficiencies in the ECHR itself when compared to the United Nations International Covenant on Civil and Political Rights (ICCPR) – the UN’s equivalent of the ECHR. The UK ratified the ICCPR in 1976 (and now 172 countries across the World have ratified it).
The right to free movement and the prohibition on the collective expulsion of aliens contained in Protocol 4 are also set out in Articles 19 and 45 of the EU’s Charter of Fundamental Rights. The prohibition against double jeopardy and the equivalence between men and women contained in Protocol 7 are set out in Articles 23 and 50 of the Charter and the general prohibition against discrimination in Protocol 12 is contained in Articles 20 and 21.
Currently, Protocol 4 of the ECHR has been signed and ratified by all bar four of the 46 Member States of the Council of Europe (Greece, Switzerland, Turkey and the UK have not ratified the Protocol). Protocol 7 has been signed and ratified by every one of the 46 Member States except for Germany, Netherlands and UK. If ratified, art.4 of Protocol 4 could be an important tool in challenging the effects of the Nationality and Borders Act 2022 and Illegal Migration Act 2023 domestically and in Strasbourg. Despite inconsistent applications of art.4 of Protocol 4, the Court’s jurisprudence is one of the few legal protections against European externalisation policies and a way for those affected to challenge domestic decisions.
Protocol 12, the general anti-discrimination provision, is also a right already contained in the ICCPR[7] but is missing from the main body of the ECHR itself. Article 14, in the main Convention, only prohibits discrimination where this relates directly to the other rights in the Convention. Protocol 12 is, however, a ‘stand-alone’ provision and has a much wider remit. Protocol 12 has been ratified by twenty Member States although it only came into force in 2005. It is accepted that it would have been more difficult for the UK to ratify in 2005. Concerns were raised regarding its potential breadth, though the Joint Committee on Human Rights considered that these concerns were unwarranted.[8] In addition, the Labour Government’s Equality Act of 2010 has now resolved many of any remaining difficulties with compliance. As a signatory to a wide variety of international human rights instruments concerning equality and non-discrimination, the United Kingdom has already accepted the main principles enshrined in Protocol 12.
As with all the Convention Rights, these rights come with protections and caveats to protect the wider public interest and the interests of society more generally. This is already clear from the fact that they are all tried and tested by being part of the ICCPR, ratified across the World and by the fact that so many countries in Europe have agreed to be bound by them.
It is also clear that, all these rights are all already largely protected by provisions of domestic law. Further, to assuage concerns regarding overreach, many of the rights in these Protocols are subject to limitations or restriction. For example, restrictions which:
“are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“may … be … imposed in accordance with law and justified by the public interest in a democratic society.”
“[are] necessary in the interests of public order or is grounded on reasons of national security.”
“shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
Many of the provisions impose important but relatively restricted ‘due process’ rights – rights to a fair procedure which is already largely set out in UK law or provided by the common law created, in large measure, by judicial review.
In relation to Protocol 12, the prohibition of discrimination, consistently with the Equality Act 2010, “distinctions for which an objective and reasonable justification exist do not constitute discrimination.”
Conclusion
The focus of protecting human rights in the UK must, at the very least, be the preservation of the Human Rights Act without any erosion of either the rights or the remedies it provides. Nevertheless, the threat to the Act will hopefully disappear now that the Labour Party is in government. It is, therefore, an important step to consider adding the further protections that are set out in Protocols 4, 7 and 12 and to bring the UK in line with most of the rest of 46 countries of the Council of Europe and the 172 countries that have ratified the ICCPR.
In the context of more the authoritarian rhetoric in politics[9] and, particularly, the regressive steps taken by the previous Government towards those seeking asylum and refuge in the UK and increasing isolation from Europe, the new Government should, at least, send a clear signal that there is a new approach being developed and indicate this by ratifying Protocols 4, 7 and 12. This will hopefully provide a way to rectify some of the damage done by recent legislation and pre-empt further attacks on human rights.
John Wadham is Human Rights Advisor to the Northern Ireland Policing Board
Fiona Byrne is an Independent Human Rights Consultant and previously Human Rights Officer at the Northern Ireland Policing Board
The views expressed are those of the authors alone.
[1]Rights Brought Home, October 1997, CM 3782, para 4.11
[2] Department of Constitutional Affairs, Report of the Outcome of an Interdepartmental Review Conducted by the Department of Constitutional Affairs, July 2004, p. 40
[3] Joint Committee on Human Rights, Review of International Human Rights Instruments, Seventeenth Report of Session 2004-05, para 38
[4]Rights Brought Home, October 1997, CM 3782, paras 4.15 and 4.16
[5] By sections 198 to 201 of the Equality Act 2010.
[6] For more detailed analysis of this provision and the applicability on legislation such as the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, see John Wadham, Fiona Byrne, More Human Rights: Protocols 4, 7 and 12 of the European Convention on Human Rights and the Human Rights Act 1998, European Human Rights Law Review 2023, Issue 6.
[8] Joint Committee on Human Rights, 17th Report (2005–2006), HL 99, para 33
[9] For example, in 2023, the UK has been downgraded from ‘narrowed’ to ‘obstructed’ civic freedoms in a new report by the CIVICUS Monitor, a global research collaboration that rates and tracks fundamental freedoms in 197 countries and territories: https://monitor.civicus.org/country-rating-changes/uk/
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:
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.
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”.
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.
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:
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.
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
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.
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 →
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Welcome back to the UK Human Rights Roundup, your regular winter wonderland 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. 
Today it was announced that the Intergovernmental Panel on Climate Change (IPCC) has published a special report on the impact of climate change 
Tomorrow, the Home Secretary 
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