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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/23/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
A flash-back to 1980: the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):
Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last five hundred years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it’s worked so well?
Hacker: That’s all ancient history, surely?
Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn’t work. Now that we’re inside we can make a complete pig’s breakfast of the whole thing — set the Germans against the French, the French against the Italians, the Italians against the Dutch… The Foreign Office is terribly pleased; it’s just like old times.
Hacker: But surely we’re all committed to the European ideal?
Sir Humphrey: [chuckles] Really, Minister.
Nearly 40 years later, as the Westminster Government seeks to extract the UK from the European project, chuckles are in short supply (in contrast to articles about Brexit). This piece considers the role of judicial review as the EU Withdrawal Bill is enacted, and after Brexit day has dawned – and the capacity of the Administrative Court to meet the increased demands that will predictably be made of it.
Codified constitutions are most commonly adopted following a major schism with the previous order. For example, following an armed uprising such as the American War of Independence or the French Revolution. The sweeping away of the old regime, of necessity, demands the creation of new fundamental principles and rules to organise the State. A codified constitution also presents an opportunity to set out the core values on which the nation can rally around. It is commonly asserted that the lack of such a critical break in UK history since the 17th century explains the absence of a codified constitution.
The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.
It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously. He would, no doubt, be surprised at the evolution of the Convention into the system it is today. But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.
Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 957, Divisional Court 28 April 2016 – read judgment
An interesting, albeit unsuccessful, challenge to the rule which prohibits expatriates who were last registered to vote in the UK more than 15 years ago from voting in the forthcoming referendum on EU membership.
Mr Schindler (now 95) has lived in Italy since 1982, but has remained throughout a UK citizen. So is Ms MacLennan, who has worked in Brussels as an EU lawyer since 1987. Neither has dual nationality. They said that the 15 year rule is an unjustified restriction of the rights of freedom of movement under EU law. They pointed to the fact that if the UK leaves the EU, they would end up without rights of abode in their current countries, and thus they had a particular interest in the outcome of the referendum.
Dominic Raab has resigned as deputy prime minister after a bullying inquiry vindicated a number of civil servants’ claims about his behaviour as a minister in the cabinets of Boris Johnson and Theresa May. The report of Andrew Tolley KC held that Raab’s behaviour constituted an “abuse or misuse of power,” citing instances of an intimidating and discouraging attitude towards the civil servants he worked with. Tolley referred to the ruling of the High Court in the 2021 case concerning the behaviour of Priti Patel towards civil servants, in which it was provided that harassment and bullying through intimidating and insulting behaviour were not consistent with the Ministerial Code. In his resignation letter, Raab said that Tolley’s findings were “flawed and set a dangerous precedent for the conduct of good government … it will encourage spurious complaints against ministers.”
The lawsuit between Dominion Voting Systems and Fox News was settled before trial with a $786.5m pay-out. The voting machines company alleged that Fox news presenters knowingly made false claims that it had rigged the 2020 presidential election result for Biden, while the news corporation framed their defence as a protection of free speech. To win at trial, Dominion’s claims faced a high bar: they would have had to prove that Fox’s statements were made in ‘actual malice,’ meaning either the corporation knowingly made the false statements or acted with reckless disregard for their falsity. Documents released to the public revealed the commercial pressures on executives and presenters to appeal to pro-Trump viewers. Commentators suggest Fox owner Rupert Murdoch wanted to avoid cross-examination of himself and his news stars at trial. The news company still faces a similar lawsuit from voting technology company, Smartmatic, which released a statement claiming that “Fox needed a villain. Without any true villain, defendants invented one.”
The debate over the European Union’s Charter of Fundamental Rights is already mired with misunderstanding (see this and this), but amazingly Saturday’s Times (£) managed to up the stupid-quotient by another few notches.
The headline was “Ministers to block ‘right to marry’ in EU backlash“. Apparently the Government has “vowed to block a fresh push to introduce new EU human rights, such as the right to marry and the right to collective bargaining, into Britain“. And as the Times’ political editor Francis Elliot (not to be confused with the generally sound legal correspondent Frances Gibb) reported:
The charter enshrines a host of rights not found in other declarations, including personal, work and family relations. One of them is a proposed “right to marry and found a family”.
The only problem is that… the right to “marry and found a family” already exists in the European Convention on Human Rights. It’s in Article 12. It has been there since the UK signed up to the ECHR in 1953. Here it is:
Welcome back to the UK Human Rights Roundup, your regular great bright firework display 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.
Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government. Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts. Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session [2011] CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion
This was an attempt by a prisoner to argue that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention. Continue reading →
In 2005, the Grand Chamber of the European Court of Human Rights handed down its landmark decision in Hirst v the United Kingdom, finding that the effect of section 3 of the Representation of the People Act 1983, bringing into effect a blanket ban on the ability of prisoners in the UK to vote in elections, constituted a breach of Article 3 of Protocol 1 of the Convention (the right to free elections).
To say the case was controversial is an understatement, with the judgment becoming something of a bête noire for Strasbourg sceptics. Murray suggests that the judgment was pivotal in the “monstering” of the European Court. It is often presented as a case which epitomises Strasbourg overreach, taking the number 1 spot in the Judicial Power Project’s buffet of unfavourable, “problematic” legal cases. David Cameron, of course, famously remarked that the idea of complying with the judgment and giving (some) prisoners the vote made him feel “physically sick”.
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Graeme Hall
In the news:
Prisoner voting remains in the headlines and given that the European Court of Human Rights has refused the UK government’s request to reconsider Greens and MT v UK, it’s not going to stray far. Benn Quinn, writing in the Guardian, notes that the UK is one of very few signatories to the Convention on Human Rights which has a blanket ban; a point picked up by Adam Wagner in his recent post.
A spokesman for the Taliban has said that working women must stay at home for their own safety as “a very temporary procedure” until systems are in place to ensure their safety. The spokesman also told Afghans not to go to Kabul airport and said the US should not encourage them to leave Afghanistan.
Last week, the former head of religious police for the Taliban confirmed that punishments such as execution and amputation would return to Afghanistan. Prior to the takeover of Kabul, a Taliban judge told the BBC that Sharia law was clear and included punishments of 100 lashes in public for sex out of marriage, being stoned to death for adultery, and “[f]or those who steal: if it’s proved, then his hand should be cut off.”
On Saturday it was reported that the Taliban hung the bodies of four alleged kidnappers from cranes in Herat city square, before moving them to other areas of the city for public display. An unidentified Taliban commander said the aim was “to alert all criminals that they are not safe”.
R (on the application of Gordon-Jones) v Secretary of State for Justice and Governor of HM Prison Send [2014] EWHC 3997 (Admin) – read judgment
Contrary to what some media reports would have us believe, Prison Service Instruction (“PSI”) 30/2013 did not impose an absolute ban on books in prisons. It did, however, impose severe restrictions on the possession or acquisition of books which a prisoner can treat as his or her own. The High Court has found that those restrictions could not be justified by the limited provision of prison library services and are therefore unlawful.
The Claimant is a prisoner serving an indefinite sentence for the protection of the public at HMP Send. She has a doctorate in English literature and a serious passion for reading. The books she wants to read are often not the sort which are required by fellow prisoners or readily available through the prison library (the Dialogues of Marcus Aurelius and Brewer’s Dictionary of Phrase and Fable, for example, crop up in the judgment) and she therefore relies on having books sent or brought to her by people outside the prison.
Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen
This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.
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A flash-back to 1980: the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):
The British public owes a lot to 
The debate over the European Union’s 
Welcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found 
The government’s proposals 
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be 
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