Search Results for: justice and security bill


President of Family Division inveighs against social engineering in adoption proceedings – Marina Wheeler

25 February 2015 by

adoption
In the matter of A (A Child) v Darlington Borough Council and (1) M (2) F (3) GM and GF and (4) A (by his children’s guardian) [2015] EWFC 11 (“Re A”) – read judgment

In a scathing judgment, the president of the Family Division has condemned as “social engineering” a local authority’s application to remove a baby boy permanently from the care of his father and place him for adoption.

The case was, he said,

an object lesson in, almost textbook example of, how not to embark upon and pursue a care case.

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Blow to benefit tourists from Supreme Court

16 March 2011 by

Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2011] UKSC 11 – Read judgment / press summary

The Supreme Court has ruled that pensioners from other European Union states should not have the right to claim pension credits in the UK. Although the current ban on claiming these benefits is indirectly discriminatory, the discrimination is a justified response to the legitimate aim of protecting the public purse.

The 4-1 majority ruling (Lord Walker dissented) is likely to calm fears of “benefit tourism” and will probably be wrongly reported as a victory of sensible limits on public finances over human rights. For the record, the appeal was based squarely on EU freedom of movement law and had very little, if anything, to do with human rights.

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The Law in These Parts – this Sunday, 2:30pm

6 November 2012 by

A quick note to say that the UK Jewish Film Festival is showing a fascinating new Israeli documentary (with subtitles), The Law in These Parts, this Sunday at 2:30pm at the Tricycle Cinema in Kilburn. The film will be followed by a discussion, chaired by me, between Danny Friedman of Matrix chambers and Jonathan Turner of 13 Old Square chambers. All details are here.

I have seen the film and it is excellent. It is an examination of legal proceedings in the territories occupied by Israel since 1967. The documentary is made up almost entirely of interviews with former judges in Israel’s security courts, including a Supreme Court justice, which in itself of great interest. Although the legal and moral issues faced up to in the film are in one way unique to Israel, many from the UK legal community will recognise themes in relation to Northern Ireland during the Troubles, as well as broader problems which we are still grappling with involving the use of secret evidence and evidence obtained by torture.

In short, one of the best legal documentaries I have seen, and highly recommended (not just by me – Newsweek described it as “a gripping new documentary“). I hope to see you there, do come and say hello if you can make it. Book here – trailer below

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The Northern Ireland Legacy Bill: Reconciliation or restriction?

31 May 2022 by

CAIN: Events: Peace: The Agreement - Agreement reached in the multi-party  negotiations (10 April 1998)
The Belfast (Good Friday) Agreement (cover)

In 1998, people across the island of Ireland overwhelmingly endorsed the Good Friday Agreement, in a historic decision which signalled hope for a post-sectarian, post-conflict future. The UK Parliament responded to this popular mandate by returning devolution to Northern Ireland. On 24 May 2022, the reverse happened: in the face of vehement opposition from Northern Ireland, the UK Parliament voted to clear the second stage of a Bill that would drastically impact efforts to deal with the Northern Ireland conflict.

The Bill: an overview

There are 4 main parts to the Northern Ireland Troubles (Legacy and Reconciliation) Bill. Part 1 defines ‘the Troubles’, traditionally a phrase used to euphemistically describe the violent political and sectarian conflict which lasted for a little over 3 decades in Northern Ireland. Part 2 establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR), charged with (among other things) reviewing deaths and certain other ‘harmful conduct’ and granting immunity from prosecution to individuals in exchange for information about those individuals’ potentially criminal conduct during the Northern Ireland conflict. Part 3 largely ends criminal investigations, prosecutions, civil actions, inquests and inquiries (except in specific circumstances). Part 4 provides for the compilation of histories of the Northern Ireland conflict.

Though the Bill’s provisions are complex, this post is not concerned primarily with those provisions. Instead, in addition to the Secretary of State’s statement (under section 19(1)(a) of the Human Rights Act 1998) of compliance with Convention rights, the Bill is accompanied by (somewhat unusually) a 36-page ‘European Convention on Human Rights Memorandum‘, written by the Northern Ireland Office. This Memorandum provides the views of the UK Government on why the Bill is Convention-compliant and this is what will be explored here.


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Election Round-Up: Ripping Up the Rulebook on Human Rights?

9 June 2017 by

Image result for polling station

It has been widely reported that Theresa May will stay on as Prime Minister following the election on June 8th. The Conservative PM will seek to form a government with the support of the Democratic Unionist Party (the DUP).

A recent Round-Up by Poppy Rimington-Pounder highlighted some welcome changes in the parties’ approaches to human rights in the pre-election manifestos. With the recent shift in political climate it seems that changes may be on the horizon.

What does the election result mean for human rights?

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Unauthorised solitary confinement incompatible with prisoner’s rights

15 October 2015 by

Image: Guardian

Shahid v. Scottish Ministers (Scotland), [2015] UKSC 58 – read judgment.

The Supreme Court has held that the continuation of a prisoner’s solitary confinement for safety reasons was not authorised under domestic rules and incompatible with the right to private life under Article 8 of the European Convention on Human Rights (“ECHR”).

by Fraser Simpson

Facts

The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy. The decision was based on threats made against the appellant. This period of solitary confinement continued until his eventual reintegration into the general prison population in August 2010.

The appellant had originally challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The Scottish courts refused his complaints and held that  his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, ECHR.

The Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8.

Compliance with domestic law?

The relevant rules concerning the power to place a prisoner in solitary confinement were, at the relevant time, contained in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 and 2006. Despite the amendment of the Rules during the relevant period, the core provisions relating to the grounds for segregation and the time limits imposed remained the same. The purpose of Shahid’s segregation – to maintain good order and protect him – was not in question. Shahid instead contended that certain time limits contained within the Prison Rules relating to the continuation of a period of segregation had not been complied with. The relevant provision, Rule 94(5), states:

“A prisoner who has been removed from association … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority … prior to the expiry of the said period of 72 hours.”

Three of the orders made authorising prolongation of Shahid’s segregation were made by the Scottish Ministers after the expiration of this 72-hour limit.

The lower courts considered that such delays did not impact upon the validity of the orders that authorised continued segregation. Importance was placed upon the relatively limited extent to which the orders were late (17, 44 and 47 hours) and the fact that the purpose of the reviews, to ensure that segregation was maintained for only as long as necessary,  was not frustrated by such limited delays.

Lord Reed, adopting an alternative construction of the Prison Rules, held that any order made after the expiration of the 72-hour period was automatically invalid (see paragraphs 15-18 of the judgment). His conclusion that the late orders authorising continued segregation of the appellant were invalid, and that a period of 14 months of segregation therefore had no legal basis, is important in the context of the Article 8 challenge.

Article 8

The Scottish Ministers accepted that the placement of the appellant in solitary confinement was an interference with his right to respect for private life under Article 8. Consequently, it was for them to show that the measure was in accordance with the law, in pursuance of a legitimate aim, and a proportionate interference in light of the pursued aim.

Lord Reed was quick to point out that his previous conclusion, that the late authorisations had rendered invalid the subsequent segregation, would result in certain periods of the segregation not being “in accordance with the law”. Accordingly, such periods of segregation could not be justified under Article 8(2).

Lord Reed went on to consider that the appropriate prison authorities had not always been independently making the decisions to continue the segregation of the appellant but instead, on some occasions, had been unduly influenced by the decisions and recommendations of a non-statutory advisory body. The need for a statutory decision making power to be exercised by the individual, or body, that has been conferred such a power had not been satisfied (see R v. Deputy Governor of Parkhurst Prison Ex p Hague, [1992] 1 AC 58). Accordingly, there was a failure to satisfy the lawfulness criterion within Article 8(2).

The Supreme Court moved on to consider the proportionality of  Shahid’s continued segregation. The lower courts, in holding that the continued segregation was proportionate, opined that it was the only practicable way of dealing with the threats made against the appellant. The Supreme Court, on the other hand, listed a number of potential alternatives to solitary confinement that could have achieved the aim of protecting the appellant from attacks, including relocating the appellant to another UK prison. Irrespective of such alternatives, the Supreme Court decided that earlier steps could have been taken to promote Shahid’s reintegration. A plan to reintegrate the prisoner had only been developed after four and a half years of almost continuous segregation. Failure to take such steps resulted in the segregation being disproportionate and a violation of Article 8.

However, the Supreme Court considered that the appellant had not suffered any prejudice. If the Article 8 violations had not occurred then there was no evidence to show he would have been returned to the general population sooner.

Additionally, the extent to which his right to respect for his private life under Article 8 had been infringed was limited considering the negative attitudes other prisoners harboured towards him.

Accordingly, the Supreme Court considered that there was no need to make an award for damages despite the appellant seeking £6,000.

Article 3

The appellant also complained that the segregation was incompatible with his right not to be subjected to inhuman or degrading treatment under Article 3, ECHR. The European Court of Human Rights has recognised the potentially damaging effect that continued solitary confinement can have upon the mental and social facilities of an individual (see Ahmad v United Kingdom, (2013) 56 EHRR 1, paragraph 207).

However, the use of such measures for disciplinary, security, or protective reasons does not automatically contravene Article 3. In assessing whether the measure was compatible with Article 3, the Supreme Court considered the conditions and duration of the detention as well as the motivation for such a measure and its impact on the appellant.

The Court concluded that the measure did not attain the minimum level of severity to engage Article 3. The appellant was kept in suitable accommodation and the ability to exercise, receive visitors and associate with other prisoners pointed towards the treatment falling short of the Article 3 threshold. Despite the length of the segregation extending beyond four years, the fact it was imposed in the interests of the appellant’s safety were also of relevance.

Comment

The use of segregation in prisons should always be considered as a serious measure. Indeed, the Council of Europe’s Committee on the Prevention of Torture advises that for punitive purposes any stint should be limited to 14 days (see the CPT’s 21st General Report, (2011), page 40).

The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.

However, if the 72-hour limit were strictly applied in this instance, there could be negative practical repercussions. When continued segregation was without legal basis, would the prison officials be under a duty to return the appellant to general population even if this would endanger his safety? An analogous situation was raised by the Inner House in support of their interpretation of the Prison Rules (paragraph 24 of the Inner House Judgment). Lord Reed answered these concerns by outlining that the officials would also be subject to a duty under s.6(1) of the Human Rights Act to secure the safety of the prisoner in accordance with Article 2 and 3, ECHR. If there was a serious risk to life then the prisoner could remain in segregation in accordance with domestic law using such protections as justification.

Interestingly, such an argument was not substantively raised on behalf of the Scottish Ministers in order to justify the periods for which there was a lack of authorisation.

Hyped up fuss

21 April 2011 by

This has been an interesting week for the continuing “debate” over the future of the European Court of Human Rights. Stay tuned for an explanation of the quotation marks.

First, Dominic Raab MP has released a pamphlet with the think-tank CIVITAS entitled Strasbourg in the Dock. Raab, a former lawyer, has been a vocal opponent of the European Court of Human Right as well as the Human Rights Act. The pamphlet can be read here and the press release and summary can be found here. He finds some of the European judges are “woefully lacking in experience” and, as a consequence, “are undermining the credibility and value of the Court“.

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Anisminic 2.0

15 May 2019 by

The Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the Investigatory Powers Tribunal’s decisions are nevertheless amenable to judicial review, despite the existence of a powerfully-drawn ‘ouster clause’ preventing its decisions from being questioned by a court.

In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be.

Background

The Investigatory Powers Tribunal (IPT) is the body which has jurisdiction to examine the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance.

The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?


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The Weekly Round-up: social care spending, Stafford statements and Ukraine’s legal battle

10 June 2022 by

In the news:

  • The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.
  • In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.
  • An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.

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The Round up: The threat to Schengen and the end of Fast Track Detention

16 November 2015 by

uk-surveillance-lawCharlotte Bellamy brings you the latest human rights news

 

In the News

The Home Office has confirmed that it is rejecting the call of Lord Carlile, the UK Government’s former independent reviewer of terror legislation, to rush the government’s internet surveillance bill through Parliament following the devastating attacks in Paris carried out by IS on Friday, Andrew Sparrow reports [at 12.18].

In Lord Carlile’s view the bill could pass through Parliament in the next three to four weeks, and the “necessary powers need to be on the statute book as quickly as that”. Though the draft bill was published on 4 November, it has not yet been scrutinised by the intended joint committee of both houses of Parliament. Despite Lord Carlile’s belief that “we don’t have time to wait” and the content of the draft bill is “for the most part perfectly reasonable”, the Home Office appears to be sticking to their original timetable that the final version be published in Spring next year, having had due regard to pre-legislative scrutiny, with a view to it becoming law before the end of 2016.
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Surveillance under RIPA: neither a strict legal framework nor rigorously overseen – Sam Lincoln

13 October 2015 by

Surveillance-Orwell-Business8aug05

Those charged with the task of protecting the public from harm resort to assertion similar to that here attributed to a GCHQ spokesperson:

Our work is carried out in accordance with a strict legal and policy framework, which ensures that our activities are authorised, necessary and proportionate, and that there is rigorous oversight.

I was the Chief Surveillance Inspector at the Office of Surveillance Commissioners for eight years until August 2013. My own view is that the legal and policy framework is not strict and that oversight is not rigorous. Until they are, we should not blame public authorities for exploiting opportunities that enable them to meet their operational and investigative objectives.

Regardless of one’s views on the actions of Mr. Snowden, public knowledge of covert capabilities has encouraged those who engage in covert conduct to explain what it is they require and why. The reports published by the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee and RUSI make important contributions but tend, in my view, to focus on the effect of technology and the impact of so-called mass surveillance. All agree that the law and oversight should be improved. Here’s my take on those two fundamentals.
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Human rights roundup: Koran burning, Diplomatic assurances and the LSC saga continues

14 September 2010 by

Terry Jones- book burning called off

Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here:

13 Sep | Terrorist suspect loses “deportations with assurances” appeal – Press Association: A suspected terrorist (‘XX’) with links to the failed July 21 bombings in London will be deported to Ethiopia in the interests of national security, a court has ruled. The Home Office have said this is a victory for their “deportation with assurances” policy which allows individuals who could not ordinarily be deported – due to risk of human rights violations – being returned with diplomatic agreement that they will not face danger (see here for an explanation). The ruling is not yet available but we will comment on it when it is. The Home Office will be relieved that this is not another case of being unable to deport a suspected terrorist due to human rights consideration (see this post).

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Seizure of passport actionable in law

9 June 2011 by

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment

 

1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.

This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty  owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.

The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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Did the UK violate Article 2 in Kosovo? Plus the Oval Four, and racism in the police

9 December 2019 by

Conor Monighan brings us the latest updates in human rights law

oval
Winston Trew and his wife, Hyacinth. Credit: The Guardian.

In the News:

Court of Appeal judges overturned the convictions of the ‘Oval Four’ after it was found that their sentences were based on evidence given by a corrupt police officer.

The ‘Oval Four’ refers to a group of black men who were arrested by officers claiming to have seen the men stealing Tube passengers’ handbags. The men were subsequently convicted in 1972 based solely on the basis of evidence given by those officers. None of the ‘victims’ appeared at the trial.

The case became a focus point for black rights and the treatment of BME people by the police. It was referred to the Criminal Cases Review Commission, which ultimately led to the successful appeal.

Whilst the convictions of three of the men were overturned, the fourth member of the ‘Oval Four’ unfortunately cannot be found.

The Lord Chief Justice, Lord Burnett, expressed “regret is that it has taken so long for this injustice to be remedied”. Lord Burnett also stated that there was “an accumulating body of evidence that points to the fundamental unreliability of evidence given by DS Ridgewell [the lead officer] … and others of this specialist group”.


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Failure to stop disability harassment is inhuman treatment, rules Strasbourg

26 September 2012 by

Attitudes changing, slowly

DORDEVIC v. CROATIA – 41526/10 – HEJUD [2012] ECHR 1640 – read judgment

The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.

It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life.  The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.

This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.


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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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