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UK Human Rights Blog - 1 Crown Office Row
Search Results for: justice and security bill/page/www.thetimes.co.uk/tto/law/article3200553.ece
The following piece was first published on the UK Constitutional Law Blog on 25 April 2024 and is reproduced here with their permission, for which the editors are grateful
Commentary on the Safety of Rwanda (Asylum and Immigration) Act (“RA”), which is shortly to receive Royal Assent, has concentrated principally on its deeming of Rwanda as a safe country whilst ousting the supervision of courts. This post considers a separate issue – section 4 of the Act as it applies to victims of slavery (“VOS”). Section 4 provides a carve out from the Act’s deeming provisions where the Home Secretary considers Rwanda is unsafe for an individual “based on compelling evidence relating specifically to their particular individual circumstances”. It also providescourts with a power of review of that question.
This post argues that, read in the light of the common law constitutional prohibition of slavery (“POS”), s.4 should prevent all suspected and confirmed victims of slavery from being removed against their will to Rwanda without, at the least, a detailed assessment of their specific risks of re-trafficking there.
The House of Lords Constitution Committee today issues its main report on the European Union (Withdrawal) Bill. This follows the preliminary and interim reports on the Bill that the Committee published last year. The new report is wide-ranging and hard-hitting, the Committee’s view being that the Bill ‘risks fundamentally undermining legal certainty’.
In this post, we make no attempt to summarise the report. Rather, we focus on two key and interlocking chapters that address the legal nature and constitutional status of the new body of domestic law — ‘retained EU law’ — that the Bill will create. In doing so, we highlight the Committee’s view that central parts of the Bill are ‘conceptually flawed’ and that relevant retained EU law should be reconceived by treating it as if it were contained in an Act of Parliament enacted on ‘exit day’.
Sir Edward Coke’s bold assertion in 1605 of one of the cornerstones of the unwritten constitution of the United Kingdom has been upheld today in a hugely important decision by the Supreme Court. In R(Miller) v Secretary of the State for Exiting the European Union [2017] UKSC 5, the Supreme Court today ruled 8-3 that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. This post focuses on the decisions made in relation to the more legally significant claim that this Article 50 notice could not be given without Parliamentary approval, rather than those made in relation to the devolution claims – although in terms of practical political impact, a ruling that the devolved assemblies had to approve the giving of notice would have been far more disruptive to the Government’s plans.
Lord Neuberger, with whom Lady Hale, and Lords Mance, Kerr, Sumption, Clarke, Wilson and Hodge agreed), gave the judgment for the majority. He introduced the case by putting the issue very simply “The question before this Court concerns the steps which are required as a matter of UK domestic law before the process of leaving the European Union can be initiated.”
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
In “The Ballad of East and West”, Rudyard Kipling memorably wrote
East is East, and West is West, and never the twain shall meet
Till Earth and Sky stand presently at God’s great Judgment Seat.
Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?
A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament. Continue reading →
1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.
On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here. Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case. In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.
The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.
In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases. Continue reading →
Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843 – read judgment
The Court of Appeal has held that UK armed forces breached both Afghan law and Article 5 of the ECHR by detaining a suspected Taliban commander for longer than the 96 hours permitted by ISAF policy.
The MOD was therefore potentially liable at both public and private law for the failures to make arrangements for extended detention and to put in place such procedural safeguards as were required by international human rights law. Moreover, the defence of ‘act of state’ was not available against either the public or private law claims. Continue reading →
In recent years, digital assets including cryptocurrencies and non-fungible tokens (NFTs) have commanded considerable media attention. Speaking extra-judicially in the foreward to the UKJT Statement on Crypto-assets and Smart Contracts in November 2019, the Master of the Rolls, Sir Geoffrey Vos, has stated that: “In legal terms, cryptoassets and smart contracts undoubtedly represent the future”. To what extent should the law of the future grant property rights in respect of crypto assets? Will the inalienable right to peaceful enjoyment of possessions apply to tokens existing only on the blockchain? Or to NFTs residing only in the ‘metaverse’?
These are the questions addressed in depth by the Law Commission’s recently published consultation paper on Digital Assets (July 2022). In this article, the author offers a number of predictions about the future direction of English law based upon the Law Commission’s paper.
Usually when a court in the UK is asked to consider a question of foreign law, the contents of that law are treated as a question of fact that must be pleaded and proved by the parties, usually by expert opinion. This is the case too in the United States, and in Hong Kong.
If the parties do not adduce factual evidence on the contents of the foreign law concerned, the English court will assume that the foreign law is exactly the same as the relevant English law – this is the common law notion of “presumption of identity”. This means, in effect, that where there is no foreign precedent on the point in question, or where the authorities are in conflict, the court must decide the matter for itself.
In an interesting briefing published by Links Law Office as part of their Dispute Resolution Bulletin, authors Patrick Zheng and Charles Qin explain that in China it is not clear whether foreign law constitutes a question of law or fact, as the Chinese court retains the power to investigate and clarify the applicable foreign law of its own motion.
Chinese law provides a number of ways for the parties and the court to “investigate and clarify” the applicable foreign law, including submissions by the parties, or the relevant foreign embassy, Chinese or foreign legal experts or “any other reasonable way to find foreign law, for example through the internet”.
Today, an open letter from 158 lawyers and academics has been published in The Guardian claiming that the law on squatting, on which the Government has proposed reforms, has been misrepresented by politicians and the media.
I am one of the letter’s signatories. Amongst other things, it states that:
a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation.
The accompanying article is here. One interesting aspect of this campaign is that it was organised in part by one of the longest standing and best legal blogs, Nearly Legal. Nearly Legal have used social media, which an ever increasing number of lawyers follow, to gather many of the signatures. Their response is here and some of their previous posts on the topic here and here.
To what extent can the government be held liable for facilitating the imposition of the death penalty in a foreign state?
Since signing the Sixth Protocol to the European Convention in 1999, the UK has refused to extradite or deport persons to countries where they are facing criminal charges that carry the death penalty.
There is no judicial precedent, however, which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country. Therefore, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, there were two questions before the Supreme Court:
1. Whether it is unlawful at common law for the Secretary of State to provide mutual legal assistance (in the form of evidence) that will facilitate the death penalty in a foreign state against the individual in respect of whom the evidence is sought; and
2. Whether and in what circumstances it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of European Union data protection law, for law enforcement authorities in the UK to transfer “personal data” to law enforcement authorities abroad for use in capital criminal proceedings.
In a judgment which showed tremendous sensitivity to the primacy of the legislature, a majority of the Supreme Court (with Lord Kerr dissenting) held the provision of mutual legal assistance (MLA) was not unlawful under the common law.
Nonetheless, the Court unanimously allowed the appeal on the second ground under Part 3 of the DPA 2018, overturning the ruling of the Divisional Court.
This is Part 3 of a three-part series which originally appeared on Inforrm’s Blog. Part 1 can be read here and Part 2 here.
There are at least four possible “ways forward” for the new law of privacy which has been developed by the courts over the past decade and which has, at least from the point of view of sections of the media, been very controversial. These four possibilities are as follows:
(1) Active steps could be taken to abolish the law of privacy and return to the pre-Human Rights Act position.
(2) The current “judge made” law of privacy could be replaced by a new “statutory tort” of invasion of privacy.
(3) A special “privacy regime” for the media could be established under a statutory regulator.
(4) “Steady as she goes” – the law of privacy could be left to develop in the current way – by the judges on the basis of the Article 8 and Article 10 case law.
Each of these possibilities gives rise to different issues and potential difficulties.
The Court of Justice of the European Union has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.
Background
In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:
‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’
Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.
While the press (and the rest of us) were preoccupied by the debate on equal marriage and the public dissection of the Huhne marriage, the Justice and Security Bill completed its next stage of passage through the Parliamentary process. Largely unwatched, a slim majority of Conservative members supported by Ian Paisley Jr., reversed each change made to the Bill by the House of Lords restoring the Government’s original vision: a brave new world where secret pleadings, hearings and judgments become the norm when a Minister claims national security may be harmed in civil litigation.
The Bill will return to the Commons for its crucial final stages on Monday. In anticipation of the debate, the Joint Committee on Human Rights (JCHR) has published a third damning critique of the Government’s proposals. The cross-party Committee was unimpressed by the Government rewrite of the Lords amendments. Most of Westminster was busy in Eastleigh and few political commentators flinched.
Following David Hart’s highly popular review of Alan Paterson’s book on the Supreme Court, here’s an account of the recent public speeches of Lord Sumption, Lord Justice Laws, and Lady Hale. I apologise in advance for the length of this post, but to do justice to all three lectures it has proved necessary to quote extensively from each. There are links to the full text of the lectures, if you want to digest them over Christmas. But whether or not that prospect appeals, here is a challenge for the festive season. Lord Sumption divides judges into three categories: the “parson”, the “pragmatic realist” and the”analyst” (quoted by Professor Paterson in Final Judgment: The Last Law Lords and the Supreme Court). Which of these labels fit the respective speakers? Continue reading →
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The House of Lords Constitution Committee today issues its 
Today, an 
This is Part 3 of a three-part series which originally appeared on 
While the press (and the rest of us) were preoccupied by the 
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