6 October 2010
Two prominent public law barristers spoke last night on the future of the Human Rights Act at the annual seminar organised by the Constitutional and Administrative Bar Association.
The seminar had a special significance as the HRA has just celebrated its 10th birthday. Both speakers looked to the future of the act in light of the coming budget cuts and economic austerity policies.
5 August 2015
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.
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1 May 2012
A High Court judge has raised the prospect that national security implications may necessitate the closed material procedure (CMP) in a case being brought against the Foreign Office by the son of a drone strike victim, the Telegraph reports today.
Mitting J has made a “rare order” that a two-day High Court hearing must take place in which both sides tackle the issue of whether the full case could go ahead in public, or whether it would require a CMP.
Background
On 12 March legal proceedings were issued against the Secretary of State for Foreign and Commonwealth Affairs, on behalf of Noor Khan, whose father was killed last year in a drone strike on a Jirga – or council of elders – in North West Pakistan. The case is highly sensitive because it would involve the disclosure of information supplied by British intelligence agencies to the CIA on the whereabouts of alleged Pakistani militants.
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18 March 2024
In the UK
The Government has announced a new definition of extremism. Michael Gove, communities secretary, told ministers on Thursday that they should not interact with any groups labelled as extremist or that do not maintain ‘public confidence in government’. While the former definition encompassed ‘vocal or active opposition’, the new definition refers to the ‘promotion or advancement of ideology’. This move away from physical acts into ideas has been criticised as having the potential to infringe on the right to freedom of thought when there is no harmful consequence – Miriam Cates MP warned of its potential to ‘chill speech of people who have perfectly legitimate, harmless views’. Any organisations judged to fall within the remit of the new definition will be excluded from receiving funding or having an audience with any minister. If a group feels that their labelling as extremist is incorrect, they can challenge the ministerial decision before the courts – but there is no process for internal appeal. The chief executive of MEND, one of the organisations mentioned by Mr Gove, told the BBC he would pursue legal action if the organisation was labelled extremist. Brendan Cox, widower of Jo Cox MP, told The Guardian in the wake of the change that ‘extremism deserves to be treated seriously and soberly, not used tactically to seek party political advantage’.
On Wednesday, the House of Commons passed the Post Office (Horizon System) Offences Bill, which automatically quashes the convictions of hundreds of sub-postmasters wrongly convicted as a result of the Horizon IT scandal. This is the first time a piece of legislation has been used in order to vacate convictions en masse. On top of the £179m already paid to those wrongly convicted, a £600,000 lump sum has been made available to sub-postmasters wrongly convicted, and a £75,000 payment was approved for any who, though not convicted, suffered mistreatment. Though the subject of the Bill is uncontroversial, some lawyers have been left feeling uneasy about its methods; legal experts have warned that legislating to overturn convictions threatens to override the judicial process and could set a dangerous precedent.
In wider news
Voting in Russia’s presidential election began on Friday with ballots continuing to be cast over the weekend. Vladimir Putin is standing for his fifth term as president after amendments to the constitution were made in 2020 to allow a candidate to stand for fifth and sixth terms; another term will see him having served 30 years in power. Although a handful of candidates are running against him, others have been disqualified and many consider that those remaining pose no credible threat. Nations have been called upon by the Parliamentary Assembly of the Council of Europe to refuse to recognise and legitimate the results of this weekend’s election, which has been referred to as a ‘carefully staged legitimisation ritual’.
Five years after the proposal for regulation was first tabled, the EU voted in a plenary session on Wednesday to adopt the Artificial Intelligence (AI) Act, now expected to receive final approval within weeks. The Act categorises the risk level of various programs and imposes stepped restrictions accordingly, including banning any system of AI deemed to pose an ‘unacceptable risk’ (with exemptions for military and national security use). The response to the Bill has been mixed – while many are praising the EU for being the first to create a set of binding regulations on AI, the Act has been criticised both for being too burdensome and stifling competition in the tech sector and for its silence on crucial human rights matters such as biometric mass surveillance and predictive policing. Amnesty International has suggested that the failure of EU lawmakers to ban the export of AI incompatible with the new legislation will allow companies to profit from technologies the Union itself has deemed excessively dangerous and harmful, establishing ‘a dangerous double standard’.
An open letter signed this week by twelve Israeli human rights organisations has accused Israel of ignoring the provisional ruling delivered by the ICJ over the military campaign in Gaza. 25 NGOs have also sent a letter this week to President Joe Biden calling for the United States to end their ‘support for the ongoing catastrophic humanitarian situation’ by terminating the provision of weapons and security assistance. This comes as the President announced a floating pier would be built for aid to access Gaza while President of the EU Commission Ursula von der Leyen announced that a sea corridor would be opened into Gaza to supply food amid fears of an impending famine.
In the courts
On Tuesday, the ECHR published a judgment confirming that the right to conscientiously object to military service is protected by the right to freedom of conscience and religion under Article 9 of the European Convention on Human Rights and Freedoms. The applicant, Murat Kanatlı, was convicted for refusing to perform compulsory Turkish military service on the grounds that he conscientiously objected. The statutory provisions did not allow him to undertake any other kind of civilian service in substitution, and therefore there was no possibility a fair balance between his interests and the interests of society had been struck. Accordingly, the Court found a breach his rights under Article 9.
Two courts in Japan ruled last week that the country’s ban on same sex marriage was unconstitutional. In separate rulings, the Sapporo High Court ruled that the lack of recognition of same sex marriage in the Civil Code violated the constitution while the Tokyo District Court declared that the ban violated the dignity of the individual and was therefore unconstitutional. These are the latest in a slew of Japanese judgments over the last five years suggesting the that the legislature should recognise same sex marriage in order to honour the rights of citizens. Though polls suggest same sex marriage enjoys support from up to 70% of the population, the government have shown no indication that this is likely to occur in the near future.
Thirty-three Metropolitan police officers are suing the Met for trauma stemming from the Grenfell Tower fire. Civil claims are being pursued for psychiatric injury suffered during the tragic event in 2017 which killed 72 people. Mediation is ongoing and it is hoped an out of court settlement will be reached. The proceedings have commenced against the Met Police after it was announced last month by the Fire Brigades Union that the claims of firefighters responding to the tower fire had been settled for over £20m. It is expected that the second and final report of the Grenfell Tower Inquiry will be published this spring or summer and will inform the Met Police’s decision as to whether to bring criminal charges against any parties, including corporate and gross negligence manslaughter.
11 April 2012
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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2 November 2015
In the news
Following almost fourteen years of detention without trial, the last British resident to be held in Guantanamo Bay, Shaker Aamer, has been released. Amnesty International has described Aamer’s plight as “one of the worst of all the detainees at Guantanamo,” given the time involved, the lengthy spells in solitary confinement and the torture he was allegedly subjected to.
“The case against the US authorities that perpetrated this travesty of justice, and British ministers and security personnel who allegedly colluded with them, should now be vigorously pursued”, writes the Observer. Long-standing questions remain surrounding claims of UK complicity in human rights abuses: in the 2009 civil case of former Guantanamo detainee Binyam Mohamed, the High Court pointedly noted that the UK’s relationship with US authorities went “far beyond that of a bystander or witness to the alleged wrongdoing.”
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18 January 2013
Knowles and another, R (on the application of) v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin) – read judgment
The High Court has rejected a claim that Gypsies occupying caravans on private land were discriminated against by legislation which resulted in them not being able to claim full Housing Benefit to cover their rent.
Occupiers of caravans on a site owned by a local housing authority receive a Housing Benefit rent rebate of the whole of the rent charged. But if the caravan is on a private site, then the rent on which HB can be claimed is subject to determination by a rent officer, and that is normally substantially less than the full contractual rent charged. The claimants maintained that this scheme fails to meet the essential housing needs of Gypsies on private sites, who have particular site infrastructure and management needs – which result in additional costs, and hence a legitimately higher rent, not reflected in the HB awarded. They contended that the scheme was therefore discriminatory, and in breach of article 14 of the European Convention on Human Rights, when read with article 1 of the First Protocol 1 (the right to property) and article 8 of the substantive Convention (the right to respect for family and private life).
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25 October 2010
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here and part 2 here.
Today I concentrate on Article 6: the right to a fair trial (click here for previous posts on Article 6).
29 June 2010
Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010
AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment
We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
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28 May 2019
It would be virtually impossible for readers of this blog, unless they have recently returned from the International Space Station, awoken from a coma or been rescued after two weeks in the Hawaiian jungle, to have failed to notice this week’s political developments. Dispensing with them briefly, this week saw the Prime Minister announce her departure, and the subsequent commencement of a Conservative leadership campaign to appoint a new PM. Into this mix was thrown Sunday’s European Parliament elections, which saw Nigel Farage’s World Trade Organisation terms advocating Brexit Party finish first, albeit in a poll that saw advocates of a “no-deal” Brexit obtain fewer votes than those committed to preventing Brexit, if you take the combined Brexit Party and UKIP vote compared to combined Liberal Democrat, Green Party and Change UK vote.
More on Britain’s political machinations can be found courtesy of wall-to-wall coverage available pretty much everywhere.
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10 July 2018
It was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.
They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?
Background
Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).
Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.
However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.
Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:
Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.
The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.
The Walk-Out
At the next hearing, on 21 March 2018, Ms Kaufmann made a number of submissions criticising the inquiry:
The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.
She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.
11 January 2012
A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.
Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.
But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-called “father of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:
3 January 2011
Stephen Kinzer, a New York Times journalist and author, has written a scathing article on the efforts of international human rights groups on Guardian.co.uk. The article has generated controversy but in fact keys into a long-standing debate with important implications for the future of the international human rights movement.
The Kinzer article has predictably generated significant debate, with over 300 reader comments so far. Many of the commenters are critical, as is to be expected.
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30 October 2015
Remember the three girls from Bethnal Green Academy, who in February slipped through Gatwick security to join so-called Islamic State of Iraq and the Levant (ISIL)? If, watching the footage, you exclaimed, “how can we stop this?”, then read on. Eight months and a massacre in Tunisia later, the Courts have intervened in more than 35 cases to prevent the flight of children to Syria or to seek their return.
In the very first cases, in which Martin Downs of these Chambers appeared, the High Court’s inherent jurisdiction was invoked to make the children wards of court. The value of this mechanism, previously used in child abduction cases and to thwart forced marriages, is that the ward requires permission of the Court to leave the jurisdiction, and passports can be seized. (See, for example, Re Y (A Minor: Wardship) [2015] EWHC 2098 (Fam)).
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8 May 2017
A new report has argued that the practice of turning back asylum seeker boats at sea is illegal under international law, and does not deter others from making the journey.
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