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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/39/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
The government’s Rwanda deportation scheme begins its battle in the Supreme Court today. Arguing the case for the appellants are In June, the Court of Appeal ruled the policy unlawful because of ‘deficiencies’ in Rwanda’s asylum-processing system. That court found that sending asylum-seekers to Rwanda entailed a ‘real risk’ of applicants being returned to their home countries, meaning the UK would break its commitment to not putting people at risk of torture under the European Convention on Human Rights.
Angus McCullough KC of 1 Crown Office Row is representing the United Nations High Commissioner for Refugees in this appeal. On the respondent (government) side, both of 1 Crown Office Row, are Neil Sheldon KC and Natasha Barnes (instructed by the Government Legal Department).
If the Supreme Court overturns this judgment, the Home Office will be able to schedule flights to Rwanda with just 12 days’ notice, unless the European Court intervenes again. The Illegal Migration Act, however, gives the Home Secretary a new power to ignore an interim order from the European Court.
At the Labour party conference, shadow ministers have announced that a Labour government would bring in significant reforms to the planning system. Keir Starmer has pledged to build 1.5m homes in the first five years of his government, introducing reforms such as increased powers of local authorities to hold property firms to account. Rachel Reeves has promised to speed up the planning process for infrastructure building.
The CPS has provided prosecutors with new guidance for ‘mercy killings.’ The term has not been defined by statute or common law and is not currently a defence to murder, but the guidance sets out the factors to consider when determining whether bringing a charge would be in public interest. These include whether the victim was under 18 years old, whether the suspect was motivated wholly by compassion, and whether the victim had clearly communicated their wish to die. The update is unlikely to radically alter the prosecution’s approach to such cases, but it articulates more clearly the reasons for and against bringing a charge where the public interest is in question.
Economic Freedom Fighters v Speaker of the National Assembly, President Jacob Zuma and Public Protector Case CCT 143/15; Democratic Alliance v Speaker of the National Assembly, President Jacob Zuma, Minister of Police, Public Protector with Corruption Watch as Amicus Curiae – Case CCT 171/15 (31 March 2016) – read judgment
The Constitutional Court of South Africa last week handed down a damning judgement against the ruling head of the African National Party (the ANC). Despite this judgment, parliament voted not to impeach him. The ANC defeated the opposition-sponsored motion, saying Mr Zuma was not guilty of “serious misconduct”.
See University of Cape Town law professor Richard Calland’s article on the consequences of this ruling for President Zuma.
Background to the Constitutional Court proceedings
The Public Protector is an institution set up under the South African Constitution to ensure good governance and “strengthen constitutional democracy in the Republic”. She investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at President Zuma’s Nkandla private residence, and she concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him and his family. Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.
For well over a year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Therefore the EFF and the DA took these applications agains the National Assembly and the President, arguing that the President should be ordered to comply with the remedial action. Continue reading →
Kenneth Clarke reveals what cuts will mean for the courts – Joshua Rozenberg: The Ministry of Justice has to make £2bn cuts from its £9bn budget (see our post on where the cuts are likely to come from). According the justice ministers’ Tory conference speech, legal aid is in line for a “total review” – no surprises there – and that popular panacea, alternative dispute resolution, will be encouraged and court discouraged. Rozenberg concludes: “Things are not going to get better and nobody should pretend otherwise. All we can hope for is the best publicly funded legal system that we can afford.” Difficult times ahead for access to justice.
It has been a quiet week in the courts from a human rights perspective. The Supreme Court gave judgment on a divorce case and a social security fraud, and whilst the Court of Appeal and High Court were more forthcoming in terms of the number of decisions made, family law and commercial cases dominated. Legal buffs may however be interested to note Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB), in which the High Court applied Spanish law in a road traffic accident case, whilst celebrity watchers and students revising for their civil litigation exams may appreciate seeing how the court applied the test from Denton to grant Johnny Christopher Depp II relief from sanctions (who knew there was a Johnny Christopher Depp I?) – Depp v News Group Newspapers Ltd & Ors [2020] EWHC 1734 (QB).
A quiet week in the courts did not however extend to a quiet week in the news…
In my post of today about checks on EU legality, I made the point that no institution formally monitors the EU apart from EU institutions. Moves are afoot to change that, though not in a form that diehard Eurosceptics are likely to relish. Article 6 of the Lisbon Treaty of European Union says that the EU shall accede to the ECHR. As and when that occurs, the European Court of Human Rights will assume a formal role in adjudicating upon the legality of EU measures. The details of accession could not be settled by the purely EU Treaty of Lisbon, hence the ongoing negotiations.
However, things have been happening very recently. Yesterday, 19 June, a joint informal body of members of the European Parliament and Council of Europe parliamentarians welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights, and, last week, the Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR.
Conservative frontrunner Liz Truss is promising to cut taxes this winter to support families amidst rising energy bills, through an emergency budget that would be enacted this September. Sunak, her rival, has pledged to provide a £15bn overall package of assistance with energy bills. Criticisms have been raised of Truss’ plans, however, with suggestions that they could cost £30bn, £40bn or even £50bn per year. Both candidates’ plans have been criticised for not being accompanied by plans for lower spending that would make them sustainable. Labour’s Rachel Reeves has argued that amidst ‘fantasy economics and unfunded announcements from the Tories’, Labour alone can offer Britain the fresh start that it needs.
A survey by the British Dental Association and the BBC has shown that 91% of NHS practices in England are not accepting new adult patients. Louise Ansari, national director of Healthwatch England, has called the results of the survey ‘dire’. Stories have emerged of people pulling out their own teeth and making their own teeth out of resin to stick back on with superglue. The health secretary has noted the ‘urgency’ of preparing the NHS for winter, amidst the pressures of coronavirus, the rising cost of living and seasonal flu. Whether the Department of Health and Social Care’s recent comment regarding the ‘government priority’ of NHS dental care will translate into satisfactory results remains to be seen.
We recently started adding links to interesting new articles and case-law the sidebar under the heading “Selected news sources”. Below is a quick rundown of the most recent links. The full list of links can be found here.
16 July | Mousa & Ors v Secretary of State for Defence & Anor: Public Interest Lawyers have won permission on behalf of 100 Iraqis to bring judicial review proceedings against the Government, alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3 of the European Convention on Human Rights – Update: see our post here
... is at the core of Jonathan Sumption QC’s FA Mann Lecture. His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.
Drawing on his not inconsiderable command of history he sets out to explain that the immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, “aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore.” We fool ourselves if we still view this as a power-grab by ambitious ministers and officials. The truth is that a powerful executive is “inherent in the democratic character of the modern state.”
Nine of the Hooded Men. Photo by Cyril Byrne/The Irish Times
In one of its final decisions of 2021, McQuillan, McGuigan and McKenna, the UK Supreme Court addressed challenges to the effectiveness of police investigations into events which took place during the Northern Ireland conflict. The European Court has long maintained that the right to life (Article 2 ECHR) and the prohibition upon torture and inhuman and degrading treatment (Article 3 ECHR) carry with them positive obligations on the state to conduct effective investigations. These “legacy” cases not only draw the Courts into debates over some of the most contentious aspects of the Northern Ireland conflict, in particular the involvement of state agents in killings and the infliction of serious harms upon individuals, but they also pose questions about how human rights law applied in the context of Northern Ireland as a jurisdiction before the enactment of the Human Rights Act 1998.
The decisions
For reasons of economy, this post will focus on the facts of the McGuigan and McKenna elements of this litigation, which concerned the ill-treatment of detainees who had been interned in the 1970s (while also exploring broader questions which concerned all elements in the litigation). The scope of this ill-treatment, involving the subjection of internees to the infamous “five techniques” (including hooding of detainees to disorient) as part of interrogations, has long been known. Indeed, the resultant case of Ireland v United Kingdom remains a key turning point in the development of the European Convention on Human Rights, demonstrating that the Strasbourg Court would be willing to uphold human rights claims against an important member state even as it sought to tackle political violence. In that decision, although the Court found that the five techniques breached Article 3 ECHR, it discussed them in terms of inhuman and degrading treatment and not torture. Releases of documents by the National Archives (highlighted in a 2014 RTÉ documentary), however, showed UK Cabinet Ministers discussing the extent of the interrogation practices when they were taking place, and led to calls for fresh police investigations into whether there has been a coverup.
The Prime Minister has courted controversy yet again this week with a new Brexit bill that appears to violate international law. The proposed Internal Markets Bill would give ministers certain powers relating to Northern Ireland in respect of customs rules and state aid. In particular, it would give them powers to modify or “disapply” rules relating to the movement of goods which will come into force from 1st January 2021, if the UK and EU are not able to agree a trade deal. These were key issues under the Northern Ireland Protocol that was negotiated as part of the Withdrawal Agreement concluded on 31 January this year. In a striking admission, Northern Ireland Minister Brandon Lewis stated in Parliament that this breach of the Withdrawal Agreement does indeed breach international law, but only “in a very specific and limited way”. The bill is to be formally debated by MPs today.
In a further move to avoid the UK’s international law obligations, the Government has indicated that it is planning to “opt out” of parts of the European Court of Human Rights. This proposal is apparently made in order to enable the Government to accelerate deportation of asylum-seekers, and to minimise legal action against British forces overseas, which the Government identifies as key areas where the judges of the European Court have “overreached”. The proposals have provoked outrage from Labour and the Liberal Democrats.
The Joint Committee on Human Rights’ inquiry into racism and human rights in the UK heard evidence this week from ClearView Research. The evidence provided from surveys indicates that black people in the UK overwhelmingly do not think they receive equal human rights protection. According to the data, 75% of black people in the UK do not believe their rights are equally protected compared to white people; 85% are not confident they would be treated the same as a white person by the police; and 60% do not believe their health is equally protected by the NHS compared to white people.
The British Institute of Human Rights has released a report which raises new concerns about the operation of the care sector during the pandemic. The report states that more than 75% of social care staff were not given proper training to deal with the impact of COVID-19, in particular in relation to human rights law and coronavirus emergency powers – despite the wide-ranging changes made by the government to the legal framework which governs the care sector, including suspending duties under the Care Act, changing vulnerable individuals’ care packages, and banning non-essential visits to care homes. The report also noted that more than 60% of vulnerable individuals with care and support needs were not informed of the legal basis of the drastic changes made to their care packages.
As the school year gets going again, grammar schools will need to be cautious in complying with their duty to make reasonable adjustments, following a legal challenge funded by the Equality and Human Rights Commission. The challenge was brought by a visually impaired student who was unable to sit an 11+ entry exam for a Berkshire grammar school when the school refused to make adjustments specified in his Education Health and Care Plan, on the basis that they were too expensive; the First-tier Tribunal found for the student.
In the courts
With the UK courts in recess, there are very few reported judgments this week. However, there are some noteworthy judgments from the European Court of Human Rights:
GL v Italy: a child diagnosed with nonverbal autism was entitled to specialised assistance under Italian law. The local authorities did not provide this for 2 years, while she was in primary school, on the basis of lack of resources. The ECtHR found that there had been a violation of Article 14 read with Article 2 of Protocol 1 (right to education). In particular, the court noted that the Italian courts had failed to consider whether there was a fair balance between the child’s educational needs and the authorities’ capacity, and did not verify how the effect of budgetary restrictions compared for non-disabled and disabled children. The court further observed that the national authorities had not considered the possibility that they could address their lack of resources by reducing their educational offer accordingly, such that it could be distributed equitably between non-disabled and disabled students. In giving judgment, the court emphasised that budgetary restrictions must impact the education available for disabled and non-disabled pupils the same way; and that discrimination of this kind is all the more serious when taking place in compulsory primary education.
NS v Croatia: the applicant’s daughter and partner had died in a tragic car accident, but their daughter survived. In the aftermath of the accident, there was a custody battle between the applicant and the child’s uncle; following confidential court proceedings, the uncle was given custody. The applicant subsequently appeared on a national TV show, where she discussed the proceedings, and expressed criticism of the Croatian child protection system on a TV show; she was convicted of a criminal offence for breach of confidentiality in respect of the court proceedings. The court held that there had been a violation of Article 10. The domestic courts should have considered the fact that most of the information disclosed in the TV report was already known to the public, and that the applicant had been appearing on TV in good faith to raise serious concerns about the malfunctioning of the country’s social welfare services.
Yordanovi v Bulgaria: two Turkish-Muslim brothers decided to set up an association for the integration of Turkish-speaking Bulgarians. In pursuit of this aim, they built a monument on private land to commemorate soldiers killed in the 19th Century Russo-Turkish War, and set up the ‘Muslim Democratic Union’ at an assembly in the centre of town. Police told them the assembly was illegal, but it went ahead; criminal proceedings were subsequently brought for setting up a political organisation on a religious basis, and for breach of the peace in setting up the monument. The brothers were given a suspended prison sentence. The court held that this was a violation of Article 11. The authorities had many other options: they could refuse to register the would-be political party, without which registration the party would not be able to engage in any official activity; and they could have dissolved the party if it were declared unconstitutional by the Constitutional Court. A criminal sanction had been a disproportionate interference with freedom of expression and freedom of association, and was not ‘necessary in a democratic society’.
Timakov and Ooo Id Rubezh v Russia: the applicant and his newspaper had published an article making allegations of corruption against the Governor of the Tula region in Russia. The Governor brought civil and criminal proceedings, and substantial damages awards were made – sufficiently substantial that some of the applicant’s household items were taken to fulfil them. The Governor was ultimately found guilty of bribery and corruption and sent to prison. The court found that there was a violation of Article 10. In reaching this conclusion, the court noted a laundry list of failings in the Russian courts: the courts had not sought to balance the governor’s interest in protecting his reputation against the importance of public transparency and accountability; the courts had not considered the applicant’s role as a journalist, that these were matters of public concern, or that he had acted in good faith; the courts had not attempted to consider whether the statements complained of were statements of fact or value judgements. The court further emphasised the chilling effect of such disproportionately high awards, with the awards from the civil proceedings having been substantially higher than the fine in the criminal proceedings.
BG and others v France: Eastern European asylum-seekers with young children were accommodated by the French authorities in a set of tents in a parking lot, for a period of approximately 3 months. They alleged that there had been a violation of Article 3 and 8, insofar as they had not benefited from the material and financial support provided for under national law. The court rejected their claim, noting that the applicants had received constant food aid; medical monitoring, vaccination, and education had been provided for their young children; and their asylum application had been examined under an accelerated process.
Shuriyya Zeylanov v Azerbaijan: this case highlights serious failings in the Nakhchivan Autonomous Republic of Azerbaijan. The applicant’s son had been charged with treason, having been accused of collaboration with Iranian intelligence forces, and died in custody from an alleged pulmonary embolism. The applicant claimed that the government had violated Articles 2 and 3. The court upheld his claim, under both the substantive and the procedural limbs. The government had failed to convincingly account for the circumstances of the victim’s death, and it appeared likely that injuries visible on video footage of his body had been occasioned by torture. Likewise, the government had failed analyse the causal links between his injuries and his death, or to cooperate with the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment; and it appeared that the government had attempted to prevent an effective investigation into the matter, by levelling accusations of defamation against the deceased’s family.
On the UKHRB
Sapan Maini-Thompson discusses a High Court challenge to conditions at Brook House Immigration Removal Centre
Philippa Collins considers the implications of the new pattern of home working for privacy rights under the European Convention of Human Rights
Elliot Gold examines a judgment of the European Court of Human Rights on Article 3 ECHR in the context of a rape investigation
Hoon v. United Kingdom, 13 November 2014, ECtHR, read judgment
Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.
In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was contacted by Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”. The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment UPDATED
A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
Last week, a number of media commentators, politicians and others sought to subvert the second consultation of the Bill of Rights Commission. This consultation invites views on a number of key issues that form part of the Commission’s mandate. In the Daily Mail’s correspondent’s view, the Commission has committed an appalling transgression by asking potential respondents whether the UK Bill of Rights should include additional rights, referring amongst other things to socio-economic rights. This is echoed by the Sun which argues that the Commission has ‘suggested’ (which it clearly has not) that ‘all Brits be given handouts as a birth right’, and the Daily Express which suggests “Spongers can Sue to Claim Benefits”.
Socio-economic rights are rights that relate to human survival and development. Like the majority of European and other countries, the UK has volunteered to be bound by a range of such rights as a result of ratifying a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ratified by the UK in 1976); the Convention on the Rights of the Child (ratified in 1992) and the European Social Charter (ratified by the UK in 1962). While these treaties haven’t been made part of our domestic law in the way the European Convention on Human Rights has been as a result of the Human Rights Act, they impose a range of human rights obligations on the UK. The government reports back periodically to the UN expert committees that monitor the implementation of these treaties.
Further details of the sinking of a Greek fishing boat carrying up to 800 people – including up to 100 children – have come out, placing the Greek authorities under intense scrutiny. The tragedy, which occurred on Wednesday 14th June, has seen the confirmed deaths of at least 78 people and only 104 confirmed survivors – with no women or children surviving. The Greek authorities have so far claimed that the boat had no issues navigating until close to the time when it began to sink and that the people onboard had refused help from the Greek coastguard. However, marine tracking evidence obtained by the BBC suggests that the overcrowded fishing vessel was not moving for at least seven hours before it capsized. This has raised questions over the actions of the Greek coastguard, prompting the UN to call for an investigation into Greece’s handling of the situation amid claims more action should have been taken earlier to initiate a full-scale rescue attempt. Up to 500 people are still unaccounted for. In slightly more positive news, nine of the people traffickers involved in the disaster have been apprehended by Greek police and pled not guilty in a Kalamata court to trafficking charges.
The Italian prosecutor for Padua, Valeria Sanzari, has demanded the cancellation of 33 birth certificates of children born to lesbian couples dating back to 2017, saying the name of the non-biological mother should be removed. The mother whose name is eliminated will no longer be able to fulfil a series of tasks, including picking up her child from school without the written permission of her partner. If the legally recognised parent dies, the children could be taken from the family home and become a ward of the state. This comes against the backdrop of the election of Meloni’s right-wing government and a debate in Italy’s lower house on a new law that would make it a crime, punishable by up to two years in jail, for couples who go abroad to have a surrogate baby, even in places where it is legal. Critics of the move, such as Italian parliamentarian Alessandro Zan, have called the proposal “cruel [and] inhumane”, saying it will result in children being “orphaned by decree”.
The recent ruling by the Supreme Court that the former leader of Sinn Féin had been unlawfully detained and convicted in the 1970s has elicited some severe criticism from high places, including former Supreme Court judge Jonathan Sumption. Matt Hill of 1 Crown Office Row discusses this case with Rosalind English in the latest episode of Law Pod UK. Matt has worked on a number of cases relating to the Troubles in Northern Ireland. He was involved as an in historian on the Bloody Sunday Inquiry, was junior counsel to the Inquiry on the recent Birmingham pub bombing inquests, and has written about the use of inquiries and inquests in dealing with the legacy of the Troubles. The discussion focusses on the so-called “Carltona” principle regarding the responsibility of ministers to consider each function of administration. Lord Sumption has said that the Supreme Court ruling in the Adams case has “left the law in an awful mess”.
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Last week, a number of media commentators, politicians and others sought to subvert the 
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