Don’t be fooled! We have been led to believe there was a two-way split on the government-appointed Bill of Rights Commission, which published its report on Tuesday, but the split was at least three-way. The Commissioners tell us that ‘it [was] not always easy to disentangle in the opinions expressed to [them] what are tactical positions rather than fundamental beliefs’. The same must surely be said of the report’s seven ‘majority’ authors.
The two dissenters who did not sign up to the majority’s conclusions – Baroness Kennedy of the Shaws QC and Philippe Sands QC – are clear: the time is not ripe for a new UK Bill of Rights. This is because (a) the devolution arrangements in the UK, in which the HRA is successfully embedded, are potentially about to undergo significant change (post-Scottish referendum) (b) the majority of respondents to the Commission’s consultation support the HRA as the UK’s Bill of Rights which incorporates the ECHR rights (but not the European Court case law) into domestic law and (c) for some Commissioners, a Bill of Rights would be a means to decoupling the connection between the United Kingdom and the European Convention on Human Rights (ECHR). In sum, “the case for a UK bill of rights has not been made” and the arguments against such a Bill “remain far more persuasive, at least for now.”
Updated British Foreign Policy will put more emphasis on protecting human rights, the Foreign Secretary said in a speech today at Lincoln’s Inn.
It has been widely reported this morning that Mr Hague will argue that a focus on human rights is inextricably linked to the UK’s security and standing, and in the context of the upcoming torture inquiry, “directly linked to the belief of others that we will do what we say and we will not apply double standards“.
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
This week we have further developments in freedom of information (both in terms of the right to free speech and the right to receive information under Article 10 of the Convention) and on the reform of courts, both at home and in Strasbourg. Also making news this week: the new Terrorist Prevention and Investigation Measures and flooding in Vladivostock.
Freedom of speech and freedom of information
This week, judgment was given in the case of Cairns v. Modi, in which Chris Cairns, former New Zealand cricketer, successfully won £90,000 in damages from Modi, the former Chairman of the Indian Premier League, who published a defamatory statement about Cairns on Twitter. Inforrm’s blog provides a case summary with a bit more detail, for those interested. Rosalind English commented on this case, and on libel cases in the context of instantaneous Internet publishing more generally, for the UK Human Rights blog on Wednesday, in which she likens the current judicial attitude to rearranging deckchairs on the Titanic. Continue reading →
West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant)  UKSC 80 – read judgment
It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…
This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.
Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision
The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.
British-Iranian Nazanin Zaghari-Ratcliffe returned to the UK on Thursday, after being imprisoned in Iran for spying, which she and the British government deny. Mrs Zaghari-Ratcliffe was originally arrested in April 2016 and sentenced to five years in prison for alleged plots to overthrow the Iranian government, which she also denies. In April 2021 she was sentenced to another year in jail for spying. Attempts by the British government, including the Prime Minister, to secure her release had previously failed but an improving UK-Iran relationship, including the settlement of a £400m debt Iran claimed the UK owed, may have contributed to her release last week. Several more dual nationals remain imprisoned in Iran, including Iranian-British-American wildlife conservationist Morad Tahbaz, charged with “co-operating with the hostile state of the US”.
Gabrielle Giffords, a Democratic US congresswoman, is in a critical condition after being shot at a public meeting in Tucson, Arizona. Six other people died in the shooting, including a federal judge and a 9-year-old child. Eighteen others suffered gunshot wounds.
Little is known as yet about the alleged shooter, Jared Lee Loughner, save that he had a troubled past and may have mental health problems. It is also possible that there was a second person involved.
Amnesty describes the NCP as “totally failing in numerous ways”, with its complaint handling procedure being “inconsistent, unreliable and biased towards businesses” resulting in companies being let “off the hook”. The failures to investigate include allegations of serious abuse, such as claims that Vodafone, BT and others allowed GCHQ to access its networks for the mass interception of phone calls, emails and Facebook posts, which it shared with the US authorities under the Tempora program.
The all-party foreign affairs select committee is currently investigating whether the Foreign Office has downgraded its commitment to defending human rights in favour of trade. MPs on the committee decided to hold an enquiry after the permanent secretary at the Foreign Office, Sir Simon McDonald, commented that human rights no longer had the same profile within his department that they had in the past.
A BIS spokesperson has said in response that their review process meets all the obligations under the OECD guidelines for trading and that there should be no suggestion the government is not committed to human rights.
Last week also saw David Cameron describe UK arms exports to Saudi Arabia as “brilliant” – on the same day that the European Parliament voted for an arms embargo on the country for its aerial bombings on Yemen.
Last week a seven-judge Supreme Court heard a case on whether the minimum-income visa requirements for UK nationals to bring over a non-EU spouse are in contravention of the right to respect for private and family life under Article 8, the Guardian reports. Under the Family Migration Rules, which changed in July 2012, UK nationals must have available funds equivalent to a minimum gross income of £18,600 to bring over a non-EU spouse, rising to £22,400 if they have a child of non-British citizenship. Two of the appellants, Abdul Majid and Shabana Javed, are British and married to Pakistani nationals; another, MM, is a Lebanese refugee; and the fourth, AF (also MM’s nephew) is a refugee from the Democratic Republic of Congo. The appellant counsel described the threshold as “completely unachievable” for many. Judgment is expected within six months.
Proposals to replace the Human Rights Act with a British Bill of Rights have been “put on ice”. Though it is claimed that the legislation is finished and “sitting on a desk inside No.10”, Downing Street is refusing to publish it, allegedly due to Gove’s decision to “defect to the Out camp” in the referendum. An unsurprised David Allen Green comments that the Human Rights Act is not likely to be repealed in this Parliament, saying that the hurdles to doing so still remain (such as the Good Friday Agreement), and suggests that the Conservatives may have begun to realise that its repeal and replacement “is not worth the time and effort”.
In the Courts
Civek v Turkey – The Court held unanimously that the Turkish authorities had violated Article 2 (right to life) by failing to protect the life of a woman who had been seriously threatened by her husband, HC. Ms Civek had made continued complaints of harassment to the Turkish authorities yet they had failed to take measures reasonably available to them to avoid her murder. Ms Civek had been subjected to sustained abuse from her husband culminating in 2010 in his remand in custody and a court order to refrain from being violent towards his wife. After his release in November 2010 (under judicial supervision), Ms Civek had complained that he was threatening to kill her. Again in December 2010 Ms Civek lodged a complaint, which led to HC being charged with threatening to kill her – but the State Prosecutor took no practical action, even though the husband could have been legitimately arrested for non-compliance with court orders. The Court found the authorities should have acted to protect Ms Civek’s life, and through their failure, her husband had been able to murder her on a street in January 2011, stabbing her 22 times.
Société de Conception de Presse et d’Édition v. France – An order by the French domestic courts that an unauthorised photograph published by Choc magazine be blacked out was not a violation of freedom of expression under article 10. Choc magazine, published by the applicant company, had published photos of a young man, IH, taken whilst he was in captivity, wearing shackles, and showing visible signs of torture. He had later died from his injuries. The Court found that the photograph had never been intended for public viewing, permission had not been obtained from IH’s relatives, and that its publication showed a grave disregard for the grief of his family. It was therefore a serious interference with the private life of IH’s relatives. The Paris Court of Appeal had ordered that the photograph in question be blacked out in all magazines put on sale, rather than withdrawn completely. The European Court of Human Rights found that such a restriction on freedom of expression was proportionate, as the text of the report remained unchanged, and that in the circumstances the penalty imposed would not have a “chilling effect” on freedom of expression.
Nasr and Ghali v Italy – This case concerned the CIA abduction and extraordinary rendition (the transfer of a person without legal process to another country for interrogation where there is a risk they might be tortured) with the cooperation of the Italian authorities, of the Egyptian imam Abu Omar (also known as Osama Nasr), who had been granted political asylum in Italy. He was held in secret in Egypt for several months in cramped and unhygienic cells where he was periodically interrogated and tortured. An investigation into Mr Nasr’s disappearance had been carried out by the national authorities but this had been ineffective due to the executive’s invocation of ‘State secrecy’ – which resulted in those responsible being granted impunity.
The Court found in respect of Mr Nasr violations of Article 3 prohibition on torture (in previous cases the Court had already held that the treatment of detainees under the CIA’s extraordinary rendition programme amounted to torture), Article 5 (right to liberty and security) – due to the unlawful nature of the detention; Article 8 (right to respect for private and family life) and Article 13 (right to effective remedy) read together with Articles 3, 5 and 8. The Court also found in respect of Ms Ghali, Mr Nasr’s wife, violations of Article 3 (because she had suffered significant non-pecuniary damage as a result of her husband’s sudden disappearance), Article 8 and Article 13.
Dink v. Turkey (applications no. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09) – This summary is based on the European Court of Human Rights press release.
In the case of Dink v. Turkey the European Court of Human Rights concluded that the authorities failed in their duty to protect the life and freedom of expression of the journalist Firat (Hrant) Dink, a prominent member of the Armenian minority in Turkey who was murdered in 2007.
Dink was a Turkish journalist of Armenian origin, and the publication director and editor-in-chief of Agos, a Turkish-Armenian weekly newspaper.
In one of its final decisions of 2021, McQuillan, McGuigan and McKenna, the UK Supreme Court addressed challenges to the effectiveness of police investigations into events which took place during the Northern Ireland conflict. The European Court has long maintained that the right to life (Article 2 ECHR) and the prohibition upon torture and inhuman and degrading treatment (Article 3 ECHR) carry with them positive obligations on the state to conduct effective investigations. These “legacy” cases not only draw the Courts into debates over some of the most contentious aspects of the Northern Ireland conflict, in particular the involvement of state agents in killings and the infliction of serious harms upon individuals, but they also pose questions about how human rights law applied in the context of Northern Ireland as a jurisdiction before the enactment of the Human Rights Act 1998.
For reasons of economy, this post will focus on the facts of the McGuigan and McKenna elements of this litigation, which concerned the ill-treatment of detainees who had been interned in the 1970s (while also exploring broader questions which concerned all elements in the litigation). The scope of this ill-treatment, involving the subjection of internees to the infamous “five techniques” (including hooding of detainees to disorient) as part of interrogations, has long been known. Indeed, the resultant case of Ireland v United Kingdom remains a key turning point in the development of the European Convention on Human Rights, demonstrating that the Strasbourg Court would be willing to uphold human rights claims against an important member state even as it sought to tackle political violence. In that decision, although the Court found that the five techniques breached Article 3 ECHR, it discussed them in terms of inhuman and degrading treatment and not torture. Releases of documents by the National Archives (highlighted in a 2014 RTÉ documentary), however, showed UK Cabinet Ministers discussing the extent of the interrogation practices when they were taking place, and led to calls for fresh police investigations into whether there has been a coverup.
The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.
Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.
A niggle has broken into a very public row between the British government and the European Commission which may yet become a bare-knuckle fight – not over the Eurozone crisis or bailouts or anything in the headlines, but over the availability or not of certain classes of benefits to EU claimants who do not satisfy this country’s “right to reside” test.
British social welfare arrangments provide for a class of non-means tested benefits such as Child Benefit and Income-based Employment Allowance that are only available to people who have resided legally in the UK for five years. The European Commission has declared this fencing-off to be in breach of EU law since it indirectly discriminates non-UK nationals coming from other EU Member States. EU rules on the social security coordination (EC Regulation EC 883/2004) allow the UK to grant social benefits to those persons who habitually reside in the UK; this EU test is satisfied by those who have been resident in the UK for two years or less. It is a common law test – a question of fact on the balance of probabilities, to be determined by looking at all the circumstances in each case. But those who pass this latter qualification can only claim means-tested benefits.
The consequences of Margaret Thatcher’s administration have been long lasting. In many areas of national life Thatcher took the British Bulldog by the scruff of the neck and house-trained it. In the context of the constitution her impact was no less significant.
But Lady Thatcher did not set out to reform the constitution. Although the 1979 Conservative Manifesto raised the possibility of a Bill of Rights nothing came of this proposal during her administration. In reality Margaret Thatcher was a traditional Conservative who believed in a strong state and had an aversion to any constitutional reform that might limit it. Yet her administration has left long lasting changes to the law and constitution. In fact there are too many to comfortably write about in a quick blog though a number of developments are of particular interest.
Updated | Wikileaks founder Julian Assange was arrested yesterday and refused bail after a hearing at Westminster Magistrates Court.
He was not arrested in relation to the whistle-blowing website Wikileaks, but rather on suspicion of having sexually assaulted two women in Sweden. His lawyers have said that “many believe” the arrest was politically motivated.
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