Conor Monighan brings us the latest updates in human rights law
In the News:
The Government’s ant-slavery tsar has severely criticised the government for failing to take action on child slavery. Dame Sara Thornton, who was appointed in 2019, said that the government was failing to make changes as promised.
Her concerns relate to the Independent Child Trafficking Guardian (ICTG) scheme, which is designed to give vulnerable children one-to-one support. Under the scheme, guardians assist children with matters ranging from GP appointments to dealing with social services. In 2016 ministers pledged to implement the scheme, but progress has since stalled.
Dame Sara said that she wrote to the Home Secretary in January outlining her concerns and highlighting the fact that the scheme only covers a third of the country. However, she has not received a response.
In a further development, Dame Sara Thornton has said that the power to intervene in child trafficking cases should be taken away from the Home Office. She argues that local authorities are much better placed to provide support. However, others have pointed out that councils lack the resources and power to adequately address child slavery.
The number of children referred to the Home Office as being potential victims of modern slavery appears to be rising. Over 2000 children were identified between September 2018 – 2019, representing a 66% rise on the previous year.
More from the Independent here and the Guardian here.
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.
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. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular hurtling freight train of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, immigration, in various forms was hotly discussed and some notable cases have been or are soon to be decided in the realm of disability rights. And not everyone is happy about the decision to televise Court of Appeal cases.
Ilias v Hungary (Application no. 47287/15) was the first case in which the ECtHR considered a land border transit zone between two member states of the Council of Europe, where the host state, Hungary, was also a member of the EU and had applied the safe third country rule under the EU asylum regime. The Grand Chamber held that the applicants’ detention did not breach Article 5 (the right to liberty and security of the person).
The applicants, Mr Ilias and Mr Ahmed, were both Bangladeshi nationals who had left Bangladesh at different times and in differing circumstances. They met in Greece and then traveled together to the Former Yugoslav Republic of Macedonia, then to Serbia, and then to Hungary. On 15 September 2015 they arrived in Hungary and entered the border transit zone at Röszke. They submitted asylum requests on the same day. Within several hours their requests were rejected as being inadmissible and they were ordered to be expelled from Hungary back to Serbia as a safe third country. The applicants then spent 23 days in the transit zone whilst they appealed this decision. On 8 October 2015, following a final decision of the Hungarian courts which rejected their applications for asylum and ordered the applicants’ expulsion, Mr Ilias and Mr Ahmed were escorted out of the transit zone and crossed the border back into Serbia.
Condliff, R (on the application of) v North Staffordshire Primary Care Trust  EWCA Civ 910 – Read judgment
A morbidly obese man has lost his appeal against his local Primary Care Trust’s (PCT’s) refusal to fund his anti-obesity surgery. The Court of Appeal ruled that the PCT had no obligation under Article 8 of the European Convention on Human Rights to consider social or non-clinical factors when deciding whether to grant a request for exceptional funding.
In his discussion of the case, Lord Justice Toulson began by saying that “Human rights law is sometimes in danger of becoming over complicated“. Underlying this point is the fact that it is already complicated enough. This is a good example: how could a court find that this case, which clearly involves the dignity and family life of a man whose life is difficult and miserable, not engage the protection of human rights law? I will try to explain.
Theresa May had appeared to have bounced back from the Article 50 Supreme Court case with the relatively smooth passing of the Brexit Bill through the House of Commons.
But her woes were clearly not at an end this week when she suffered defeat at the hands of the House of Lords. The peers voted 358 to 256 in favour of amending the Brexit Bill in order to guarantee the rights of EU citizens already living in the UK – the amendment drawing support not only from Labour, Liberal, and Crossbench peers, but also 7 Conservative peers.
What’s the issue?
There are currently over 3 million EU citizens living in the UK. While we are part of the EU they are allowed to move and work freely in whichever Member State area they choose.
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, the Foreign and Commonwealth Office published its Report on Democracy and Human Rights and the Legal Aid, Sentencing and Punishment of Offenders Act was enacted. The Leveson Inquiry continues to roll on, and we have a fresh round of commentary over freedom of speech, and over the democratic legitimacy of judicial decisions on human rights.
With apologies, this post originally appeared with the wrong title
The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners
The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed). Continue reading →
In R (NB & Others) v Secretary of State for the Home Department  EWHC 1489 (Admin), the High Court ruled that the treatment of asylum seekers at Napier military barracks did not meet minimum legal standards, that the process for allocating asylum seekers to accommodation centres was flawed and unlawful and that the six claimants had been falsely imprisoned during the “inevitable” Covid-19 outbreak. David Manknell of 1 COR was junior counsel to the SSHD.
In September 2020, Napier military barracks was converted into a medium-term accommodation centre for asylum seekers. By the end of January 2021, the centre had witnessed a major outbreak of Covid-19, protests by residents against poor conditions inside the facility and a fire.
NB and the other five claimants had been kept at the barracks for months. This was despite evidence that that they had all experienced “people trafficking and/or torture prior to their arrival in the United Kingdom” and that several of them were suffering from pre-existing mental health issues as a result of their experiences. At issue in this case was the Defendant’s decision in each of the Claimants’ cases that they should be accommodated at the Barracks.
Welcome back to the UK Human Rights Roundup, your regular late summer bake off of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Following the Tory Conference, commentators postulated on the topography of the human rights landscape in 2015. Meanwhile, more looming concerns have been raised about proposed reform of judicial review, while challenges have been raised to the bedroom tax, as well as the UK’s involvement in PRISM.
On 17 February the Home Secretary announced that the government was moving ahead with changes to the Civil Partnership Act 2004 which would allow the registration of civil partnerships to take place in religious premises.
While welcomed by many, some have voiced concerns that permission will inevitably become coercion. They fear that religious organisations may face legal action if they refuse to facilitate civil partnership ceremonies, a claim the Government denies. But will they?
One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police, or of the administration of the State.
The right to freedom of assembly covers peaceful protests and demonstrations. Public and private meetings are protected under this Article. These may be limited mainly on the grounds of public order. In most cases Article 11 rights are considered together with the right to freedom of expression under Article 10 and sometimes the right to a fair trial under Article 6. The Strasbourg Court will only reach a ruling under Article 11 if it considers that this is the lex specialis to be applied in a given case, in other words whether its provisions are more relevant to the facts than those in Article 10.
The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective. Freedom of association also implies a negative right for individuals who may not be compelled to join an association: (1) Young (2) James (3) Webster v United Kingdom (1981) 4 EHRR 38 (a case concerning closed shop agreements) and Sigurdur A Sigurjonsson v Iceland (1993) 16 EHRR 462 (compulsory membership of a taxi association breached the applicant’s right to freedom of association). In addition to this in the recent case of Demir & Baykara v. Turkey (10 November 2008), the Grand Chamber held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions, something of a departure from the case law on this particular element of trades unionism in the seventies. States are also under a positive obligation to provide legal safeguards for employees against actions taken by private employers. In one case a private company dismissed the applicant who was a candidate for the British National Party, because he might allegedly have offended clients of ethnic origin if they discovered his leanings. The Strasbourg Court upheld his complaint under Article 11, concluding that his right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs: Redfearn v United Kingdom, 6 November 2012.
Freedom of assembly is often in the news as demonstrations, sit-ins, staged occupations and other forms of protest are part and parcel of the public life of a liberal democracy. We discuss the application of domestic public order laws and the extent to which they can be mitigated by Article 11 here.
R(on the application of Reilly (No. 2) and another) v Secretary of State for Work and Pensions,  EWHC2182 (Admin) – read judgment
The High Court has issued a declaration of incompatibility following a successful challenge to the Jobseekers (Back to Work Schemes) Act 2013. The regulations under the Act that sanctioned those who did not participate in unpaid “work for your benefit” schemes by depriving them of an allowance violated the rule of law protected by the Convention and this country’s unwritten constitution. However, the dispute did not engage Article 1 of the First Protocol to the ECHR.
The claimants, Caitlin Reilly and Jonathan Hewstone (CR and JH) had been unemployed and claimed jobseeker’s allowance. They objected to participation in schemes devised under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, in which they were required to work for no pay. As a sanction, the allowance could be withheld from those who refused to participate. CR complied with the requirement under the regulations to take unpaid work at Poundland so did not suffer any sanction. However, attendance on the scheme meant she was unable to continue her voluntary work in a museum, which she hoped would lead to a career in museums (see my previous post on her successful challenge to the scheme). After that ruling, the regulations were amended to overcome the defects identified by the court. But the 2013 regulations, which applied prospectively, had the effect of retrospectively validating the 2011 Regulations, which the Court of Appeal had held to be unlawful. Then the Supreme Court allowed the secretary of state’s appeal against the Court of Appeal decision on the basis that the Act was in force. But the declaration in favour of CR remained valid, following the 2013 Act and that Supreme Court judgment; indeed counsel for the Secretary of State acknowledged the fact that Ms Reilly’s position was “not affected by the 2013 Act.”
JH had not been a party to Reilly No. 1. but his position was clearly affected by that ruling. After initial attendance on a scheme for some months, he refused to participate further, and so his JSA payments were stopped for four specified periods by way of sanction. He in turn had successfully appealed against sanctions imposed by the 2013 scheme. The secretary of state’s appeal against those decisions had been stayed pending the outcome of Reilly.
The claimants submitted that the 2013 Act was incompatible with their rights under Article 6. It was an intervention in the ongoing proceedings in Reilly No. 1 which had the effect of determining the litigation in the government’s favour by retrospectively validating its unlawful acts. It thereby deprived both claimants of a fair determination of their civil rights and obligations, contrary to to the first paragraph of Article 6. JH also relied upon Article 1 Protocol 1, claiming that by withholding his JSA, the defendant deprived him of a “possession” to which he was entitled. He submitted that the deprivation could not be justified as being in the public interest.
The court allowed the applications in respect of Article 6 but not A1P1.
Reasoning behind the judgment
Article 6 and the rule of law
CR and JH had brought proceedings against the state. The 2013 Act was directly targeted at resolving the Reilly litigation. As such, this legislative act by the government had amounted to an interference in ongoing legal proceedings: it had influenced the judicial determination in the secretary of state’s favour in Reilly and was likely to do so in JH’s appeals. Although Parliament was not precluded in civil matters from adopting retrospective provisions, it cannot legislate so as to interfere with the courts’ handling of disputes before them:
the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other on compelling grounds of the general interest –with the administration of justice designed to influence the judicial determination of a dispute. (Zielinski v France (2001) 31 EHRR 19)
Nor did the ruling in National & Provincial Building Society v United Kingdom (1998) 25 EHRR 127 avail the defendant, even though the Strasbourg Court ruled there that legislation to close an unforeseen tax loophole was compatible with Article 6. The government in that case, the Court concluded, had “compelling public interest motives” to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable. By contrast, in the instant case the claimants could not have foreseen Parliament’s retrospective validation of its own unlawful act.
Although these principles emanate from decisions of the Strasbourg Court, in Lang J’s view, they also accurately reflected fundamental principles of the UK’s unwritten constitution, which enshrines the fundamental principle of the rule of law:
It requires, inter alia, that Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.
The secretary of state submitted that there had been compelling public interest grounds for the retrospective legislation. Lang J acknowledged that it was understandable that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them. But it was apparent from Strasbourg’s judgments, such as Scordino and Zielinkski, that financial loss alone was not a sufficiently “compelling reason in the public interest”. If it were, then retrospective legislation of this kind would be commonplace.” (para 107).
Not only was there insufficient public interest to justify the retrospective legislation but the government had been aware of the concerns about the legality of the statute because it had been brought to the attention of its proposer by the report of the Constitution Committee. One of its members, Lord Pannick, told the House:
this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes – Parliament is sovereign – but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government.
Whilst judicial review is more properly concerned with the substance of the legislation, not the reasons for it, Lang J wryly observes that the absence of any consultation with representative organisations, and the lack of scrutiny by the relevant parliamentary committees, “may have contributed to some misconceptions about the legal justification for the retrospective legislation.” (para 96). The government’s statement to Parliament explaining why the 2013 Act would be Convention compatible had not explained that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling public interest reasons. Further, the statement had erred in concluding that the case was comparable to National & Provincial as the legislation would be closing a loophole. It was not accurate to characterise the flaws in the 2011 Regulations as a loophole. The 2013 Regulations had remedied the technical defect identified by the court in the original Reilly litigation, but that did not mean there were compelling grounds to justify the interference with CR and JH’s rights under Article 6 to a judicial determination of their claims. The 2013 Act therefore violated Article 6(1) in relation to those who had pursued claims in the courts or tribunals.
Article 1 Protocol 1: had the Second Claimant been “deprived” of his “possessions”?
JH failed in his claim that he had suffered a violation of the right to respect for peaceful enjoyment of possessions. This was not because he had succeeded under Article 6 – the rights protected by the respective provisions were different (AXA General Insurance Ltd, Petitioners  UKSC 46). Lang J accepted the claimants’ argument that a wholly state-funded non-contributory benefit could constitute a possession under A1P1, but JH’s right to the allowance depended on whether he met the conditions for receipt of the benefit. He had not met the conditions for future payment. He had not been deprived of an existing possession because there was no revocation of benefits previously received. This was made clear in Moskal v Poland, where the Strasbourg Court observed that
Art. 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the contracting state’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. ((2010) 50 EHRR 22)
It was clear from this statement of principle that, in order to establish a property right, the applicant must fulfill the requirements for receipt of the benefit at the relevant time. Nor did he have a reasonable expectation that the allowance would be paid if his legal claim was successful. His claim was not an “asset” within A1P1. His only reasonable expectation had been that his appeal would be determined in accordance with the law as it stood from time to time.
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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.