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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/43/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
On May the 10th the government announced that a fundamental change to the Retained EU Law Bill. As you will hear from Episode 184, I discuss with Sam Willis of the Public Law Project the so called sunsetting clauses in the bill which would have repealed all EU legislation at the end of the year, with the exception of any EU law that ministers decided to keep. Since this episode was recorded, business Secretary Kimi Badenoch has said that the the government is to publish a list of the retained laws that will be scrapped by the end of 2023. Instead of thousands of unspecified EU laws expiring by the end of the year, a mere 600 out of the 5000 odd pieces of legislation from the EU era will be repealed. So please bear this in mind when listening to our discussion.
Here are the full citations for the cases referred to in the episode:
Walker v Innospec Ltd [2017] UKSC 47, [2017] 4 All ER 1004 Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, [29] (Lord Bingham), cited as continuing to be applicable in Peninsula Securities Ltd v Dunnes Stores Ltd (Bangor) Ltd [2020] UKSC 36, [2020] 3 WLR 521, [49] (Lord Wilson JSC) (both applying Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) Lock v British Gas Trading Ltd [2016] EWCA Civ 983, [2017] 4 All ER 291
Tunein Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (26 March 2021)
And here are the following pensions cases that are relevant to this issue:
Case C-17/17 Hampshire v Board of the Pension Protection Fund [2019] ICR 327 Case C-168/18 Pensions-Sicherungs-Verein VVaG v Günther Bauer [2020] 2 CMLR 26 And see Hansard for the fourth sitting of the Public Bill Committee on the 22 November 2022, at pages 168-169, for the Minister’s following comments:
“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system, as it is a European Court judgment that does not fully align to the UK private pension protection scheme”
When a provision of legislation is held to be incompatible with a Convention right, a Minister of the Crown ‘may by order make such amendments to the primary legislation as he considers necessary’. This power to take remedial action, contained within section 10 of the Human Rights Act (HRA), applies when a domestic court finds an incompatibility with the European Convention on Human Rights (ECHR), and also when the Minister considers a provision of legislation incompatible with the Convention ‘having regard to a finding of the European Court of Human Rights’ (ECtHR). A recent draft remedial order laid before Parliament aims to remedy an incompatibility of the latter kind, following the ECtHR’s judgment in Hammerton v United Kingdomno. 6287/10 ECHR 2016. The draft remedial order is of particular interest because it purports to amend the Human Rights Act itself.
Professor Richard Ekins, writing for Policy Exchange, has criticised the draft remedial order as ultra vires and ‘of doubtful constitutional propriety’ and argues that the power in section 10 does not authorise ministers to amend the HRA itself. Further, he contends that the Hammerton judgment of the Strasbourg Court – which gives rise to the draft remedial order – is open to question. This blog post seeks to demonstrate that, whatever the merits of the wider argument about the constitutional propriety of amending the HRA through the power in section 10, the Hammerton judgment itself is based on well established ECHR case law. It is suggested that, in so far as it rests on a characterisation of the Hammerton judgment as unreasoned or lacking a reasonable basis, any view that the draft remedial order is of questionable validity is mistaken
Welcome back to the UK Human Rights Roundup, your regular Olympic opening ceremony of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
Blow out the candles and wish a very happy 60th birthday to the ECHR. That celebration has been the cause of much reflection and commentary, including looking at the UK’s future relationship with the Convention and the Human Rights Act. Elsewhere, the MoJ has released consultations on new criminal legal aid plans and further proposed changes to judicial review.
The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.
In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.
An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.
Publishing the Justice and Security Bill this morning, the Secretary of State for Justice said “I have used the last few months to listen to the concerns of … civil liberties campaigners with whom I usually agree.”
There are many people who today would sorely like to agree that Ken has listened and has taken their concerns on board. Unfortunately, the Government’s analysis remains fundamentally flawed. The Green Paper was clearly a “big ask”. There have undoubtedly been significant changes made from the proposals in the Green Paper. However, the secret justice proposals in the Justice and Security Bill remain fundamentally unfair, unnecessary and unjustified.
We recently started adding links to interesting new articles and case-law the sidebar under the heading “Recent selected sources (del.icio.us)”. Below is a quick rundown of the most recent links. The full list of links can be found here.
2 July | Police use of protest photos will face review– The Financial Times reports that the use of police databases containing thousands of photographs of demonstrators is to be reviewed by ministers as part of a government vow to expand the right to non-violent protest (a pledge made in the Coalition Program for Government).
The best of human rights news from the web in the past week. You can read our full list of external links here.
Alternative feminist judgment: R v A (No 2) [2001] UKHL 25 – guardian.co.uk: This ‘alternative’ judgment is part of the new Feminist Judgments Project, an interesting attempt by academics, practitioners and activists to produce 23 alternative feminist judgments to a series of key cases in English law. An introductory article in the Guardian explains that the project’s aim is not to encourage judges taken an ideological viewpoint but, rather, to accept that prejudice may have coloured even the highest judges’ reasoning at various points in English legal history and see whether things could have been different. It could be said that all they are doing is replacing one form of prejudice with another.
In any case, no matter how clever our judges are – and they are very bright indeed – it must be of some relevance that at the highest level they are almost exclusively white males aged 60+. The debate over judges’ prejudices is still much more alive in the United States than it is here, but that doesn’t mean we should continue to ignore it, particularly after the passing of the Human Rights Act which means courts are ruling on increasingly sensitive social issues. This project seeks to tease out the potential of an alternative viewpoint.
Public inquiries have proliferated in recent years. There are currently over 20 underway in the UK. That is twice as many as in 2005 when the Inquiries Act came into force. The four new statutory inquiries initiated so far in 2025 cover a diverse range of subjects: the horrific attacks in Nottingham in 2023 and Southport in 2024, the long-running grooming gangs’ scandal, and the infamous Battle of Orgreave in 1984 in which violent clashes occurred between striking miners and the police.
Sam Sykes and Conor Monighan provide the latest updates in human rights law
In the news
This week marked the 70th
anniversary of the Community Party’s rule in China. In Hong Kong, there were
violent protests and clashes with the police. The unrest which began in the
wake of the controversial extradition bill introduced 4 months ago has
developed into a wider movement for democracy, and there is no resolution in
sight. The situation has caused damage to buildings and transportation
infrastructure, and serious injuries: this week, an 18-year-old was shot in the
chest – police say that he is now recovering.
Carrie Lam, the Chief Executive of Hong
Kong, invoked the Emergency Powers Ordinance to try and create order. It is the
first time in 50 years that such regulations have been created. The regulations
ban people from wearing face masks, which protesters use to protect themselves
from tear gas, and also to preserve their anonymity. Although many have ignored
the rule, the Hong Kong authorities are now bringing the first charges under
the new law.
The imminent litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.
A quick reminder of what this is all about:
In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.
The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.
This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament. This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.
Because parliament brought us into the UK, only parliament can authorise a decision to leave.
Since the prerogative forms part of the common law, the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.
Government
Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.
The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.
The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.
Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.
Citizens’ Rights
People’s Challenge
Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.
Government
Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.
In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.
Devolution
People’s Challenge
The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.
Government
The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.
Concluding statements
People’s Challenge
If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.
Government
It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.
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Rhubarb, rhubarb. Another defeat for the United Kingdom in Strasbourg yesterday. In James, Wells and Lee v. the United Kingdom, a chamber of the Court’s Fourth Section held that indeterminate sentences of imprisonment for public protection infringed Article 5 of the Convention. At his first Justice Questions in the House of Commons yesterday, our fresh-minted Conservative Lord Chancellor and Justice Secretary, Chris Grayling, advised MPs that:
“I’m very disappointed with the ECHR decision this morning. I have to say, it is not an area where I welcome the Court, seeking to make rulings. It is something we intend to appeal.”
One wonders which areas Mr Grayling would welcome the Court’s jurisdiction, but all in all, a somewhat tepid response from a man whose appointment was greeted by the Daily Mail with the enthusiastic suggestion that Grayling…
“… unlike his predecessor Ken Clarke, will have no truck with the cardboard judges at the European Court of Human Rights.”
Welcome back to the UK Human Rights Roundup, your weekly buffet 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 big news this week has been the unexpected turn of events in the Assange extradition case. Almost immediately after the Supreme Court handed down its judgment that he could be extradited, his counsel Dinah Rose QC threw a spanner in the works… The upshot is that it looks like Assange shall be sticking around for at least another couple of weeks. The other significant news of the week is that the Government has published the Justice and Security Bill.
Bank Mellat v HM Treasury [2013] UKSC 38 (CMP: see judgment) and 39 (main: see judgment)
Two sets of judgments today from a 9-judge Supreme Court in the Bank Mellat case. The first explains why the Court adopted a secret procedure in the absence of the Bank (i.e. a Closed Material Procedure) but added that the whole palaver in fact added nothing to their knowledge. The second concludes that financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market were arbitrary and irrational and were also procedurally unfair.
The saga started when on 9 October 2009 the Treasury made a direction under Schedule 7 of the Counter-Terrorism Act 2008 requiring all persons operating in the financial sector not to have any commercial dealings with Bank Mellat. The Treasury said that the Bank had connections with Iran’s nuclear and ballistic missile programme. Continue reading →
The Overseas Operations (Service Personnel and Veterans) Bill is currently progressing through Parliament. Billed as one of the most controversial pieces of legislation in recent years, it was anticipated that the Second Reading in late September would be a fiery encounter. While it may have lived up to this billing, the outcome was more of a damp squib. With the government assisted by a whip to abstain from the Labour benches, the reading passed with 331 votes in favour to 77 against.
This post reflects not so much on the content of the Bill, which has been explored in excellent detail here, here and here but instead on how the nature of the debate was influenced by its central subjects being ‘folk heroes’ in the form of members of the UK’s armed forces, and the increasing attempt to cast members of the legal profession who seek to hold the state to account as ‘folk villains’. Induced by the various passions and allegiances associated with this proposed legislation, the presence of these adversaries obfuscated other important considerations in the debate: most notably, the law.
Welcome back to 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. You can also find our table of human rights cases here.
by Melinda Padron
In the news last week
Torture, top-secret documents and the boycott to the detainee inquiry
Last week some of the key UK human rights campaign groups decided to boycott the Detainee Inquiry on the basis that it lacks credibility and transparency, with much of the relevant evidence and information to remain secret – see Matthew Flinn’s post asking whether the inquiry will be human rights compliant.
Responding to the boycott, the Inquiry issued a statement that it will still go ahead as planned. Watching the Law blog opines that without the involvement of these bodies (which include the likes of Liberty, Reprieve, Amnesty International and Justice) the Inquiry is highly unlikely to command any public confidence.
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Welcome back to the UK Human Rights Roundup, your regular Olympic opening ceremony of human rights news and views. The full list of links can be found 
Publishing the 
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found 
Welcome back to 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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