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.
This week saw the Queen’s Speech set out a number of legislative reforms, the veto of the release of the NHS risk register and the latest instalment in the Abu Qatada saga after the European Court of Human Rights declared his appeal was within time but nonetheless declined to hear it.
Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.
The focus this week has been on the continuing Abu Qatada saga. The Home Secretary lost her appeal and for the time being, Abu Qatada will remain in the country. In other news, the Justice and Security Bill edges towards the finish line, discussion continues on whether the UK will be able to remain in the EU if they leave the ECHR and people are split on the proposed press regulation measures.
The Special Advocates have responded to the Government’s submission to the statutory Review of closed proceedings being conducted by Sir Duncan Ouseley — but HMG’s submission remains unpublished.
The delayed statutory review into closed proceedings under the Justice and Security Act 2013 (JSA) is reaching its conclusion. According to the Government’s website, it is estimated that the report “should be laid before Parliament early in 2022”.
A very brief recap:
Closed material procedures (CMPs) enable the Government to rely on secret evidence in legal proceedings, without showing that evidence to the other party. To reduce the unfairness inherent in that, a special advocate is appointed to review the secret material and represent the interests of the party excluded from access to it, including in hearings held in secret.
The JSA came into force in June 2013. Controversially, it included provisions making secret procedures (CMPs) available across the full range of civil proceedings.
One of the safeguards required by Parliament during the Bill’s bumpy passage was a review of the operation of CMPs under the Act after it had been in force for 5 years.
Another year (with further enquiries as to the position from various quarters in the meantime – summarised here) was to pass before the Government announced that a Reviewer had been appointed: Sir Duncan Ouseley, a retired High Court Judge and former President of the Special Immigration Appeals Commission (SIAC – the body responsible for hearing CMPs in statutory immigration appeals), so with wide experience of CMPs from his judicial career. The call for evidence took place earlier this year, closing just over 3 years beyond the date that the review should have taken place.
The Special Advocates (of whom I am one) made a detailed submission to the Reviewer based on our collective experience of CMPs under the JSA. This was published on this blog here: Secret Justice – The Insiders’ View. We highlighted some serious concerns that we had encountered with the practical operation of CMPs under the JSA. We also drew attention to commitments that the Government had made when the Bill was passing, to improve the effectiveness of the system, which had not been honoured.
We have seen no response from the Government to the detailed critique that we set out in our paper, and we do not know whether any attempt at a comprehensive reply by HMG has been submitted to the Reviewer.
What of the Government’s submission to the Review? In publishing our paper for the Review, in the interests of openness and promoting public debate, the SAs had expressed the hope that HMG’s response (and that of any other Government bodies or agencies) would do likewise:
In a corresponding spirit of transparency, it is hoped that any submissions to this review on behalf of Government bodies or agencies will be published in full, and so made available for wider review and comment. [para 5 of SAs’ submission of 8.6.21]
That has not been done. What did happen was that on 29 July 2021 the SAs were sent the Government’s Response by the Reviewer (not HMG) and told that this response was shared in confidence, and was not for onward transmission.
Welcome back to the UK Human Rights Roundup, your regular assortment 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.
Not a particularly noisy week on the human rights front, but some interesting summaries and analyses. The House of Commons Library has compiled a summary of UK cases before Strasbourg since 1975, as well as on the prisoner voting issue. Some commentary on the issue of secret justice, in particular the role of the independent reviewer of terrorism legislation, and the powers of the court of protection in contempt proceedings.
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
Two of the UK’s top judges have given fascinating speeches this week on justice in the age of insecurity. One by the head of the supreme court warns that budget cuts will imperil the independence of the judiciary. The other, by the head of the court of appeal, argues that despite not being able to tell the government what to do, UK courts can provide effective protection of fundamental rights.
The speeches offer fascinating and sometimes controversial perspectives on our odd but in many ways admirable constitutional system, as well as warnings that strained budgets and political meddling could do it damage.
One of the country’s most senior judges, Lord Neuberger, has given a stirring speech on the challenges of open justice in the 21st century. His ideas are progressive and practical, and amount to a manifesto for building a more open justice system, fit for the internet age.
The annual Judicial Studies Board lecture has in recent years been used by the senior judiciary to criticise the European Court of Human Rights (see Lord Judge’s and Lord Hoffmann’s 2010 and 2009 speeches), so Neuberger’s Open Justice Unbound represents a refreshing change of pace. Continue reading →
By all accounts, it has been a gloomy year for access to justice. The legal aid budget is to be reduced by £350m and state assistance has effectively disappeared in non-criminal cases. The overall justice budget, which is already low by international standards, is to be cut by a further 23%. But believe it or not, there may be reasons to be cheerful.
In the virtual world, legal blogs are becoming an established voice in the UK legal community and the flourishing blogosphere has given the public a lively, accessible and most importantly free new way of engaging with the law. With legal aid becoming scarcer and Citizens Advice Bureaus losing their funding, free information services such can be the last resort for those who seek legal help without having to pay for a lawyer.
But none of these services would exist without their hidden backbone: BAILII. To that end, when Legal Week published its excellent review of legal blogging last month, the failure to mention BAILII caused a min-revolution from a gaggle of legal bloggers in the comments section.
The Justice Secretary Ken Clarke has announced that the ban on broadcasting in courts is to be lifted. Broadcasting will initially be allowed from the Court of Appeal, and the Government will “look to expand” to the Crown Court later. All changes “will be worked out in close consultation with the judiciary“.
Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.
The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants. Continue reading →
This case concerned the question of what should happen to a conviction when it turns out that it is based on pre-trial malpractice by the police (this time involving evidence from a “supergrass”), where there is nevertheless other strong evidence of the defendant’s guilt. If the pre-trial irregularity is sufficiently serious materially to affect the trial but not to render the conviction unsafe, should the Court of Appeal retain the power to order a retrial? Or should the conviction should be quashed?
In this case the appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve-year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. His evidence was crucial to the arrest and prosecution of the appellant. Continue reading →
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
Hill, R(on the application of) v Institute of Chartered Accountants of England and Wales  EWCA Civ 555 – read judgment
The concept of fairness embodied in the different strands of natural justice have to be seen as flexible and as not requiring the courts to lay down over rigid rules, so that where it had been agreed that a tribunal member could be temporarily absent for part of the hearing, there had been no breach of the rules of natural justice.
The appellant chartered accountant had been found guilty of unprofessional conduct by the respondent Institute. He appealed against the Administrative Court’s refusal of his application for judicial review of the Institute’s decision ( EWHC 1731 (QB)). He maintained that there had been a breach of natural justice in the proceedings because one of the tribunal members had missed a large part of the hearing, and that all proceedings of that tribunal after one of its members left were therefore a nullity, including the decision of the tribunal that the charge was proved. Mr Hill contended in particular that the breach of natural justice that “he who decides must hear” had been so grave that the tribunal had acted without jurisdiction, and acting without jurisdiction could not be consented to, and that any consent had to be from the appellant personally. Continue reading →
Her Majesty’s Attorney-General Claimant – and – (1) MGN Limited Defendants (2) News Group Newspapers Limited – Read judgment
The High Court has found that the Daily Mirror and The Sun were in breach of the Contempt of Court Act 1981 (1981 Act) in relation to their reporting of the Jo Yeates murder case. The court was strongly critical of the “vilification” of a man who was arrested but quickly released without charge.
The proceedings were in relation to Christopher Jefferies, a school teacher who was arrested early on in the investigation. The court fined the Daily Mirror £50,000 and The Sun £18,000.
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