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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoner voting/page/45/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
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.
by Melinda Padron
In the news last week:
At a time when the sustainability of the principle of Parliamentary sovereignty in modern British society is being called into question, Lord Neuberger gave a speech entitled “Who are the masters now?”, where he made a case for Parliamentary supremacy.
He suggested the principle remains absolute for five main reasons:
(1) Parliamentary sovereignty is the cornerstone of our constitutional settlement;
(2) Parliament does not want judges to have the power to overrule statutes (and he added that neither do judges);
(3) arguments to the contrary are far removed from reality that they undermine the main proposition they seek to support;
(4) even the strongest advocates of limiting Parliamentary sovereignty accept that such could only be done in the most exceptional of circumstances;
(5) we live in a world where democratic accountability is of the essence, and as such it would be undesirable for unelected judges to exercise powers to limit Parliament. Continue reading →
Bringing Rights Back Homeis the latest policy document to address the tension between judges and politicians over public policy with human rights implications.
Within hours of publication of the report, a hard-hitting academic paper put together by the political scientist Michael Pinto-Duschinsky, criticism started pouring in, and there will be no doubt more huffing and puffing to come.
But before these lofty admonitions stifle them, it is worth considering some of the paper’s objections and proposals. These are legitimate points made in a political debate which has been masquerading for years as a legal one. The document is essentially uncontroversial, in legal terms. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular seasonal sack-load 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 Sarina Kidd.
This week, bloggers tried to get to the bottom of the ‘forced caesarian’ case, a Supreme Court judge weighed in on the relationship between the UK and European law, and on Tuesday it’s the 65th birthday of the Universal Declaration of Human Rights.
A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.
Sixty years of human rights and it feels like they’ve been with us for ever. Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.
Salvesen v. Riddell [2013] UKSC 22, 24 April 2013, read judgment
When can an agricultural landlord turf out his tenant farmer? The answer to this question has ebbed and flowed since the Second World War, but one element of the latest attempt by the Scottish Parliament to redress the balance in favour of tenants has just been declared incompatible with Article 1 of the 1st Protocol (A1P1) as offending landlords’ rights to property. The Supreme Court has so ruled, upholding the Second Division of the Court of Session’s ruling in March 2012.
The reasoning is not just of interest to agricultural lawyers either side of the border. But a brief summary of the laws is necessary in order to identify the invidiousness of the new law as identified by the Court – and hence its applicability to other circumstances.
As will be seen from my postscript, the decision of the court below to the same effect appears to have had tragic consequences.
Four Conservatives and four Liberal Democrats told to “sort out” UK human rights (the terms of reference were a little less vague, but that’s basically it), whilst also being limited to proposing a Bill of Rights that “incorporates and builds on all our obligations under the European Convention on Human Rights“. In other words, the could do very little at all except fiddle with our already existing, and actually quite elegant, Human Rights Act 1998. I have compared any new Bill of Rights arising from the Commission a bit like an updated Ford Fiesta; a new look and a few new features, but essentially the same car.
There will be plenty of analysis once the report is released. I wanted to concentrate here on the likely reaction. Matthew Parris got it right in Saturday’s Times (£) when he quoted Edmund Burke:
US President Donald Trump and Supreme Leader of North Korea Kim Jong-un
In the News
A number of reports and warnings on working conditions for junior judges, the criminal justice system’s treatment of victims of sexual violence, and prison sentencing for individuals with mental health issues have been published this week.
The Criminal Bar Association has warned that junior judges are being put on what are in effect zero-hours contracts, as their working days have been slashed and requests are being made for them to sit at the bench at impossibly short notice. The Guardian’s legal affair correspondent Owen Bowcott attributes the worsening working conditions to ‘a fresh round of austerity’, noting that the Ministry of Justice has suffered deeper cuts than any other Whitehall department since 2010. Conversely, the MoJ insists that the reason for the change is that the number of cases going to court has fallen and therefore fewer recorders are required. Caroline Goodwin QC, vice-chair of the Criminal Bar Association, said: ‘Exactly how recorders are to fulfil their sitting obligations and maintain any real career progression simply beggars belief.’
Baroness Newlove, the outgoing victim’s commissioner for England and Wales, has warned in her annual report that there has been a ‘breakdown in confidence between victims of sexual violence and the criminal justice system’. She cited recent data that suggests fewer than 2% of victims of sexual assault will see their perpetrator convicted in the courts. Arguing that the criminal justice system had become a ‘hostile environment’ for victims, Newlove called for them to be offered free legal advice before consenting to handing over their phones or personal records, expressed concern over defence barristers cross-examining victims on their previous sexual history, and echoed Sir John Gillen’s call for a ‘large-scale publicity campaign and training for juries’ to counteract rape myths and stereotyping.
In the Guardian, Fern Champion, a survivor of sexual violence who is campaigning to ensure access to specialist counselling services, observed that rape crisis centres and services are being forced to turn thousands of women away because high demand and long-term underfunding have resulted in waiting lists as long as 14 months. She expressed concern that the Tory leadership candidates Boris Johnson and Jeremy Hunt demonstrate ‘clear inability to understand’ the extent and severity of the crisis. In the same paper, Emily Reynolds called for a duty to be imposed on employers to prevent sexual harassment in the workplace.
Ten years since the publication of the landmark Bradley Report, a new report by the Centre for Mental Health has recommended further change to ensure that people who suffer from mental ill-health and addictions are not sent to prison when alternatives are more effective. The report finds too many people are sentenced to short prison sentences without any pre-sentence report on their needs, and recommends that Liaison and Diversion services should be resourced to enable effective screening of all those who come into police custody or attend voluntarily.
In Other News
China, North Korea and Hong Kong have been in the headlines this week for a number of diplomatic developments which engage human rights issues.
At the G20, President Trump and Xi Jinping agreed to restart trade talks, with the US president saying he would not impose threatened tariffs on Chinese goods, and indicating his readiness to lift a ban on American companies selling components to Huawei. Writing in the Times, Philip Sherwell observed that the American president ‘seemed most at ease among authoritarians’ and deflected questions about human rights abuses in Russia and Saudi Arabia.
An impromptu early morning tweet at the G20 led to President Trump becoming the first United States leader to enter North Korea, during a hastily arranged meeting with Kim Jong-un at the border with South Korea. The two men then crossed the border to greet the South Korean president, Moon Jae-in. Four months after the failure of Trump and Kim’s last summit in Vietnam, the three leaders talked for just under an hour before announcing that teams of North Korean and US diplomats will resume negotiations on denuclearisation. Kim stated that the meeting indicates an intention to ‘bring an end to the unpleasant past and build a new future’, while Trump said it would ‘start a process and we will see what happens’, and Moon characterised it as ‘a significant milestone in the peace process on the Korean peninsula’.
Responses have been mixed. Professor Robert Kelly of South Korea’s Pusan National University derided the meeting as a ‘photo op for the 2020 election’ driven by Trump’s ‘lust for optics and drama rather than substance’. Taking a similar tone, Victor Cha, a former American negotiator with North Korea, said ‘theatrics are no substitute for denuclearisation’. In contrast, Pope Francis praised the meeting as a ‘good example of the culture of encounter’.
In the Times, Richard Lloyd Parry observed that the ‘gaping divide’ between the ideology of the two sides could render ‘Mr Trump’s hop across the border’ meaningless: ’Kim does not want western style capitalism, because of the danger that it would unlock unrest in his cowed and isolated population’. As with Trump and Kim’s February summit, there was no discussion of North Korea’s woeful record of ‘systemic, widespread and grave human rights violations’, in the words of a 2014 UN Report into conditions in the country.
In Hong Kong, around two million people marched to demand the resignation of leader Carrie Lam a day after she pulled back from a bitterly unpopular proposed law that would allow extradition to China. Lam’s apologises and offers to ‘postpone’ the measure did little to settle public outcry against the bill, which could allow China to exert more influence in Hong Kong to silence critics, undermine civic discourse, and erode the independence of the judiciary.
In the Courts
In Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099, the Court of Appeal unanimously rejected an appeal against a Divisional Court ruling that the Agudas Israel Housing Association’s arrangements for the allocation of social housing, which are currently allocated only to members of the Orthodox Jewish community, were lawful. In his judgement, Lord Justice Lewison pointed with approval to Hackney’s evidence that ‘AIHA’s allocation arrangements are valuable for the purpose of alleviating high levels of child poverty in the Orthodox Jewish community’.
In Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 Mr Justice Hayden identified a number of principles determining whether permission should be granted in applications for the appointment of personal welfare deputies. The three young people on whose behalf the applications were a non-verbal 24-year-old man with autism, epilepsy and severe learning difficulties; a 24-year-old woman with Down’s Syndrome and a learning disability; and a 20-year-old man with severe autism, requiring constant supervision. In his judgement, Mr Justice Hayden emphasised that the ‘defining principle’ of the Mental Capacity Act 2005 was the ‘recognition of the importance of human autonomy’ in the presumption set out at Section 1(2) that ‘a person person must be assumed to have capacity unless it is established that he lacks capacity’.
In three applications brought against Serbia and the Ukraine, the European Court of Human Rights declared that the applications were admissible and disclosed a breach of Articles 6 and 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to the excessive length of administrative proceedings: Case of Milosavljević v Serbia [2019] ECHR 496; Case of Yeryomina and Others v Ukraine [2019] ECHR 507; Case of Tseboyev and Others v Russia [2019] ECHR 505.
Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here:
13 Sep | Terrorist suspect loses “deportations with assurances” appeal – Press Association: A suspected terrorist (‘XX’) with links to the failed July 21 bombings in London will be deported to Ethiopia in the interests of national security, a court has ruled. The Home Office have said this is a victory for their “deportation with assurances” policy which allows individuals who could not ordinarily be deported – due to risk of human rights violations – being returned with diplomatic agreement that they will not face danger (see here for an explanation). The ruling is not yet available but we will comment on it when it is. The Home Office will be relieved that this is not another case of being unable to deport a suspected terrorist due to human rights consideration (see this post).
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog. Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.
The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.
12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.
As you might expect, the article is as full of arrant nonsense as the new guide – which can be downloaded for free here – is full of useful information. Nonsense like this:
In a list of examples of past cases, it even cites Islamist cleric Abu Qatada’s successful challenge under human rights laws against Home Office attempts to send him back to Jordan to face terror charges
Welcome back to the UK Human Rights Roundup, your regular bustling bonanza 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 Sarina Kidd.
After a long wait, the European Court of Human Rights delivered its judgment on state immunity in civil proceedings in Jones and Others v UK. Meanwhile, an atheist has been granted asylum on religious grounds and the Supreme Court ruled that a child’s views are relevant to the evaluation of their habitual residence.
In the matter of A (A Child) v Darlington Borough Council and (1) M (2) F (3) GM and GF and (4) A (by his children’s guardian) [2015] EWFC 11 (“Re A”) – read judgment
In a scathing judgment, the president of the Family Division has condemned as “social engineering” a local authority’s application to remove a baby boy permanently from the care of his father and place him for adoption.
The case was, he said,
an object lesson in, almost textbook example of, how not to embark upon and pursue a care case.
The Crown Prosecution Service (CPS) has published interim guidance on when to prosecute people for grossly offensive and obscene messages they send on social media. The guidelines are now subject to a full public consultation. Earlier this year, I took part in a series of round table discussions with the DPP over how the guidelines would look.
Section 127 of the Communications Act 2003 prohibits any message sent “by means of a public electronic communications network” which is “grossly offensive or of an indecent, obscene or menacing character“.
The guidelines are sensible, to a point. They will make it less likely in future that people are prosecuted for saying stupid things online. Prosecutors are reminded that many offences will already be covered under other criminal laws such as those dealing with harassment, stalking or other violent threats. Cases which are not covered by those laws, that is the grossly offensive etc messages, are “subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest“. The CPS then seeks to define “grossly” offensive, at least in the negative, as cases which are more than:
Offensive, shocking or disturbing; or
Satirical, iconoclastic or rude comment; or
The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.
In yesterday’s Telegraph online, Cristina Odone blogged on a recent “scandal” relating to Mr Justice Mostyn’s request to carry out his responsibilities as a duty judge in Tenerife. I will leave comment on the main story to Charon QC, save to say that Odone uses the story as a means of judge-bashing, a sport which is currently popular in the press and even with politicians. “Who”, asks Odone channeling public anger, “do these judges think they are?” Moreover,
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Welcome back to the UK Human Rights Roundup, your regular seasonal sack-load of human rights news and views. The full list of links can be found 
The 
12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express 
Welcome back to the UK Human Rights Roundup, your regular bustling bonanza of human rights news and views. The full list of links can be found 
The Crown Prosecution Service (CPS) has published 
Human rights and discrimination law are often criticised in the press. Sometimes the criticisms are justified, but the level of anger which a system of universal rights can generate is sometimes surprising. Unfortunately, some of that anger is caused by inaccurate reporting of judgments.
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