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UK Human Rights Blog - 1 Crown Office Row
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Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
This week saw the Queen’s Speech set out a number of legislative reforms, the veto of the release of the NHS risk register and the latest instalment in the Abu Qatada saga after the European Court of Human Rights declared his appeal was within time but nonetheless declined to hear it.
It was once said of Apple’s Steve Jobs that he could convince himself and others to believe almost anything with a mix of charm, charisma, bravado, hyperbole, marketing, and persistence. Following Jobs’ untimely death, Wikileaks founder Julian Assange has taken over the mantle of his patented Reality Distortion Field.
It would seem (on Twitter at least) that you are now either with Assange or against him. To be with him is to believe that he is in the throes of an international conspiracy involving, but not limited to, the British Government, courts, the Swedish Government, his rape (not bad sexual etiquette) accusers, of course the Americans and possibly the saucer people too. To be in the other (artificially exaggerated) camp is to not automatically believe that his Swedish accusers have been concocted by a dastardly international conspiracy, but rather that their accusations should be met with (whisper it) due process. Moreover, Assange has had his days in court, all the way to the UK Supreme Court, and now must face his accusers.
Since Assange happens to be in the UK (well, technically in Ecuador I suppose), the UK legal blogging community has taken it upon itself to bring reality back into line. Not since the Freemen of the Land has a legal issue generated a series of counter-woo posts of such quality, and after this rather lengthy introduction, all I seek to do is link to them with approval:
On Friday 18 June, the Ministry of Justice published the End-to-End Rape Review Report on Findings and Actions, which assesses how the system is currently failing rape complainants, and sets out a plan to return the volume of cases progressing to court to pre-2016 levels.
In the two years it took to produce the report, the number of rape prosecutions continued to decline rapidly, prompting concerns that rape had been de facto decriminalised. The drop appears to stem from the CPS’s introduction of “levels of ambition” in 2016. Prosecutors were encouraged to aim for 60% of prosecuted cases ending in a conviction; perversely, this may have incentivised dropping weaker or more challenging cases, and resulted in a 60% drop in prosecutions even as the number of police reports increased.
There have been calls for the Lord Chancellor Robert Buckland to resign if he cannot reverse the trend within a year. In the review’s forward, ministers collectively said they were “deeply ashamed.” Elsewhere, Buckland said he was “deeply sorry”.
However, the review has come under fire for an “astonishing” failure to address the effect of funding cuts, reduced resources, release under investigation, court backlogs and delays on the criminal justice system. When asked directly whether he agreed that the system was too under-resourced to be effective, Buckland replied, “I don’t believe we’re close to breaking point, but I do accept that there are pressures on the system which do cause some of the legitimate concerns that I’ve sought to address in the rape review.”
Buckland currently has 21 days to decide whether to request a formal reconsideration of the Parole Board’s decision to approve the release of Colin Pitchfork, jailed in 1988 after raping and strangling 15-year-olds Lynda Mann and Dawn Ashworth in Leicestershire in 1983 and 1986. Shortly after the review’s publication, an analysis of thousands of sexual offence convictions has shown that nearly a third of those convicted avoid prison, including those found guilty of serious sexual offences against children under 13.
The Human Rights Act 1998 has been in force since October 2000. It incorporates into domestic law the rights and liberties enshrined in the European Convention on Human Rights, a treaty to which the United Kingdom is signatory but which until 2000 had no application in domestic law.
The 1950 Convention
The European Convention on Human Rights
When The European Convention on Human Rights was signed in 1951 the view was that the system should protect against only very serious human rights infringements. Many people maintain the Convention was never intended to become what it has today, its Court “sometimes acting like a type of Supreme Court for Europe in the field of human rights” (see “What was the point of the European Convention on Human Rights).
Whether one agrees or not with the way it has developed, the bottom line is that the Convention guarantees a range of political rights and freedoms of the individual against interference by the State. Signatory States to the Convention may not violate the right to life of their citizens, subject them to torture, inhuman or degrading treatment, press them into enforced labour, deprive them of their liberty without due process and compensation, deprive them of access to justice or a fair trial or introduce laws that impose retrospective criminal liability for acts that were innocent at the time they were committed. Individuals’ rights to privacy, freedom of religion, expression, association and assembly, to marry and found a family, may not be infringed without proper justification. The rights enshrined in the Convention must be guaranteed to each individual irrespective of sex or race and a range of other grounds. Because some of the rights oblige the State to respect the interests of citizens by imposing positive obligations on governments, this sometimes has the effect of enabling individuals to claim Convention rights in relation to each other. consequently the State, via its courts and legislation, is bound to secure compliance with those rights.
Before the incorporation of the Convention, individuals in the United Kingdom could only complain of unlawful interference with their Convention rights by lodging a petition with the European Commission of Human Rights in Strasbourg, which itself only referred the case to the European Court of Human Rights for a full hearing if it considered that the complainant had exhausted all his or her local remedies and that a range of other admissibility criteria had been satisfied. This process took on average five years, from the lodging of a petition to the publication of the Court’s judgment.
The EU Charter of Fundamental Rights
Although the Charter arose since the inception of the Human Rights Act, some commentators believe that it is a sharper weapon than the Convention because any of its provisions may be invoked as a point of EU law. Indeed, a High Court judge has recently commented that
it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed. (R(AB) v Secretary of State [2013] EWHC 3453 (Admin), at [14])
This instrument, which was given legal effect by Article 6(1) TEU (the Lisbon Treaty), is controversial because it contains a range of rights some of which mimic those in the European Convention of Human Rights, others which go beyond the scope of the ECHR by appearing to grant social and economic rights to citizens of the EU, including the right to health care (Article 35), access to services (Article 36) and social security (Article 34). These are aspirational “rights” whose effect on the EU legislature has yet to be played out.
Although it has full Treaty force, the Charter does not extend the competence or powers of the EU (Article 51(2) of the Charter and Article 6(1) TEU). The jurisprudence of the European Court of Justice has long established the rule that the human rights aspect of Community law is only binding on member states when their actions engage EU law (Case 5/88 Wachauf and Case C-260/89 ERT ). However, EU law reaches far into the relationship between state and citizen and as a result the UK has filed an “opt-out” protocol in respect of the Charter, Article 1 of which states that it
does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms (Protocol No 30 of 2007)
The precise effect of this Protocol continues to be debated (Poland is also a signatory). See the effect of Article 1 of the Protocol in NS v Secretary of State and ME and others v Refugee Applications Commissioner and Another (Joined Cases C-411/10 and C-493/10). Suffice it to say thus far the Charter does not apply to disputes between private individuals, nor does it supersede the so-called ‘general principles of law’ which the CJEU has invoked to protect human rights for the past forty years. The Lisbon Treaty retains these ‘general principles’ as a distinct category according to the wording of Article 6(3):
Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
The UKHRB follows closely developments in the application and scope of the EU Charter provisions, which are unconnected with the ultimate fate of the 1998 Human Rights Act. Each of our Convention Rights pages cross references the corresponding right in the EU Charter.
What can be challenged under the Human Rights Act 1998?
Primary legislation, secondary legislation and the common law can be made the subject of an action under the Act, in addition to decisions and actions of public authorities.
There are limitations. Secondary legislation is subject to the rights set out in the Convention (s.3) but such legislation may be protected from challenge if the primary legislation under which it was made prevents it from being interpreted in a way that is compatible with Convention rights.
If the court is unable to construe a statute in accordance with the Convention it has no power to set it aside. However, it can issue a declaration under s.4 of the Act that the relevant statutory provision is incompatible with the rights set out in the Convention. Furthermore, litigants and judges alike are now alert to the possibilities of the EU Charter whose provisions may prevail over primary legislation by virtue of the European Communities Act 1972.
There is no specific procedure for applying for a declaration of incompatibility, although Civil Procedure Rule 19.4A provides that a court may not make a declaration of incompatibility unless certain notice provisions have been fulfilled. In general the process is analogous to that used for declaration by originating summons. Such a declaration imposes no obligation on Ministers to respond but the Act provides in s.10 for a remedial order to be made whereby the minister may introduce a statutory instrument to amend or repeal the offending provision. There is a “fast track” procedure of 40 days during which the proposed statutory instrument is laid before both Houses of Parliament before passing into law.
Section 6 makes it unlawful for all public authorities to act in a way which is incompatible with the rights in the Convention. “An act” includes the failure to act but does not include a failure to introduce legislation or make a remedial order pursuant to a declaration of incompatibility.
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Who is liable under the Human Rights Act 1998?
In principle, the Act is only vertically effective, direct challenges may only be made to the actions of “public authorities”. However “public authority” is widely defined in s.6 to include central and local government, the courts, the police, immigration officers and “any person certain of whose functions are functions of a public nature”. A privatised utility such as Network Rail, for example, will be carrying out functions of a public nature in its role of regulating the railways and ensuring safety standards and in that capacity will be liable under the Act, whereas in its capacity as employer, it may not be liable. The dividing line between public and private functions is constantly being tested in the courts, as it has to be decided on a case by case basis. Both Houses of Parliament are excluded from the definition of public authority, a provision that was designed to exclude Acts of Parliament from direct attack under the incorporated Convention.
Although the Convention only applies directly to disputes between individuals and public authorities, the obligations it imposes on the State does colour the outcome of disputes between private parties. This is because “courts” are included in the definition of public authorities. Since it is unlawful under the Act for such public authorities to act in a way which is incompatible with the rights under the Convention, courts are under increasing pressure to interpret the common law in accordance with the Convention even in the determination of private disputes.
In addition, courts are bound by s.3 of the Act to construe primary and subordinate legislation in a way which is compatible with Convention rights. Even though the common law is not specified in this section, a judge adjudicating a dispute between private parties is often urged to interpret a rule of common law in accordance with Convention rights. The limitation of liability under the Act to “public authorities” does, however, mean that private parties are generally not able to take proceedings against each other on Convention grounds alone.
The inclusion of courts in the definition of public authority means that individuals are sometimes able to rely on Convention grounds in judicial review proceedings against the lower courts, such as magistrates’ courts and the immigration appeals tribunal. The decisions of the higher courts which cannot be judicially reviewed may be appealed on Convention grounds. However, it should be borne in mind that s.9 of the Human Rights Act 1998 provides that Convention challenges may not be brought in defiance of any rule of law which prevents a judicial decision being the object of judicial review.
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Strasbourg Case-Law
A court or tribunal deciding a question in respect of a Convention right must take account of “relevant judgments, decisions, declarations and opinions made or given by the … European Court of Human Rights and the Committee of Ministers of the Council of Europe” (Section 2(1) of the Human Rights Act). This means that Strasbourg jurisprudence will be influential, although not binding, on national courts.
The anomolous situation is that although the rulings of the Court do not bind our own judiciary they create international law obligations for the government. As Adam Wagner has pointed out, by virtue of article 46 of the European Convention on Human Rights, the government must “abide by”, that is, it must follow, final decisions of the European Court of Human Rights.
The situation becomes more bizarre still, as the UK supreme court (along with all other courts) need only “take into account” judgments of the Strasbourg court. So the supreme court, which is subordinate to parliament in every other way, can do what parliament by its own choice cannot: namely, ignore decisions of the European Court of Human Rights. So the Strasbourg Court’s rulings on the legitimacy of any particular infringement will have an impact on the way domestic courts will approach the question. Strasbourg judgements provide non-binding guidance on the tests of necessity and proportionality, which means that any given limitation should achieve its aim without excessive impact on the rights of the individual.
A good week, to say the least, for Mikhail Kordokovsky, recently released from a Russian jail. A complex story of punitive tax assessments on his former company, Yukos, has led to a judgement of €1.866 bn in Strasbourg against Russia.
I shall concentrate on the Strasbourg case, although for sheer numbers the story is perhaps elsewhere; on 28 July 2014 shareholders had obtained awards from the Permanent Court of Arbitration in The Hague ordering Russia to pay $51.57 bn to shareholders in Yukos Oil, saying officials had manipulated the legal system to bankrupt the company.
Liz Truss has been confirmed as the new prime minister. She is expected to freeze energy bills at approximately £2,500 a year and to provide a £400 universal handout. She has reportedly ruled out the idea of a windfall tax on oil companies, which was proposed by Labour. She is apparently considering reviewing workers’ rights, as part of her plan to scrap remaining EU regulations by the end of next year.
The chair of the Criminal Bar Association has called on Dominic Raab to hold talks to resolve their industrial action, which began in April. On Monday, criminal barristers began an indefinite all-out strike, calling for legal aid fees to increase by 25% immediately.
In other news
Ministers plan to introduce legislation to encourage nurses and dentists trained elsewhere to begin working for the NHS. The health secretary, Steve Barclay, is hoping to boost overseas recruitment in health and social care. This move comes after the number of unfilled NHS posts reached a record high of 132,139 earlier this year. Link 5 – ministers to make it easier
Two councils are planning to seek permission to appeal to the Supreme Court following two successful appeals which involved the striking out of negligence claims that had been brought against them. The appeals considered when children being cared for by local authorities under the Children Act 1989 are owed a duty of care by those local authorities and the social workers for whom they are vicariously liable.
The conservation charity WildFish has asked the Government to withdraw its Storm Overflow Discharge Reduction Plan, on the grounds that it is ‘unlawful on many counts’ by encouraging breaches of environmental laws to continue. The Plan allows the continuation of environmental damage caused by up to 100% of storm overflows discharging into high priority sites. It has been labelled a ‘smoke and mirror’ approach which does not deal robustly with water companies’ sewage pollution of UK rivers.
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
Starting with the Sharon Shoesmith decision, which has been helpfully summarised by Obiter J. The Spectator reports that the Secretary of State for education Michael Gove intends to appeal the decision to the Supreme Court. The reported grounds of that appeal, gleaned from “Whitehall sources”, are interesting. Although Gove “recognises that Balls blundered in the way he dismissed her“,
he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.
The response to the Covid-19 pandemic by governments across the world has thrown into sharp relief the fact that at a time of crisis the institutions and functions of Nation States are still the key structures responsible for the most basic duty of protecting their citizens’ lives. In the United Kingdom, the recent weeks have seen interventions by the Government in the economy and in the freedom of movement that are commonly seen as unparalleled in the post 1945 era. Continue reading →
The EU’s highest court this week held that employers are entitled to ban religious symbols in the workplace, including the Islamic headscarf.
What were the references about?
Two Muslim women, Ms Achbita (Case C‑157/15) and Ms Bougnaoui (Case C‑188/15), claimed to have been victims of discrimination after they were dismissed for refusing to comply with their employers’ stipulations that they not wear the Islamic headscarf.
Bank Mellat v HM Treasury [2011] EWCA Civ 1: read judgment.
Financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market did not breach common law or ECHR principles of fairness, said the Court of Appeal on Thursday.
The Counter-Terrorism Act 2008 conferred powers on the Treasury to restrict persons operating in the financial sector from entering or participating in any transaction or business relationship with the appellant Bank Mellat (BM). The Order, which was subject to the affirmative resolution procedure and reviewable on limited grounds (Section 63(2) CTA) was justified by a Ministerial Statement which declared that the direction to cease business would
reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Iran’s proliferation sensitive activities. Continue reading →
The Court of Appeal in Northern Ireland will sit this week to consider an appeal against the refusal of the High Court to give recognition to the marriage of a gay man from Northern Ireland who had married his husband in London under the Marriage (Same Sex Couples) Act 2013. The original decision by Mr Justice O’Hara was published last August and reported as Re X [2017] NIFam 12. Under the terms of the 2013 Act, same sex marriage in England and Wales is treated for the purposes of the law of Northern Ireland as a civil partnership (in accordance with the Civil Partnership Act 2004). The Petitioner wants recognition of his marriage as such and argues that the denial of recognition is a breach of his Convention Rights.
When civil partnerships were being introduced for England, Wales and Scotland, Northern Ireland was going through one of its periods of direct rule from London. The UK government embarked upon a lightning consultation exercise and subsequently decided to include Northern Ireland in what came to be the Civil Partnership Act 2004. That meant that civil partnership was a UK wide arrangement. In fact, by a quirk of the law, the first civil partnership ceremony in the UK took place in Belfast, between Shannon Sickles and Grainne Close (who have also been refused a High Court Declaration that they can get married in the North). Continue reading →
Schwartz and another v Insogna and another, United States Court of Appeals for the Second Circuit – read judgment
Never doubt the authority of the law, particularly in the US, where a six year battle triggered by a middle finger gesture continues to rage in the New York courts.
In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device. The driver, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof. As the New York Times reports
The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.
Mr Schwartz maintained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes. Continue reading →
Updated |The UK public only really worries about terrorism after an attack or a credible threat of one. Certainly, at the moment, it would take a serious threat to knock the Shakespearean drama of phone-hacking off the front pages. Nevertheless, the government and others continue their efforts to contain the threat, and it is perhaps a sign of the strategy’s success that we are not unduly worried by it.
Part of that strategy is that under terrorism law the secretary of state must appoint a person to review the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2000, and in particular proscription of organisations, stop and search powers, arrest and detention powers and prosecutions for terrorist offences. To that end, the new Independent Reviewer of Terrorism Legislation, David Anderson QC, has released his first annual report.
The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution. Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case. This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.
The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).
This was one of those deeply troubling cases where there was disagreement amongst the family members over whether their incapacitated brother/father should continue with clinically assisted nutrition and hydration. One brother had applied for ANH to be discontinued, but because of the objections of the patient’s son, it was said that he would “continue to be cared for by nursing staff”.
As Hayden J observed, this was a “troubling non sequitur”:
Family dissent to a medical consensus should never stand in the way of an incapacitated patient’s best interests being properly identified. A difference of view between the doctors and a family member should not be permitted to subjugate this best interest investigation.
This particular hearing was ex post facto: in 11th June 2021, Hayden J delivered an extempore judgment in which he indicated why the continued provision of nutrition and hydration to GU, in the manner outlined above, was contrary to GU’s interests. However, having concluded that it was not in GU’s best interests to continue to receive CANH at the hearing on 11th June 2021, he considered it was necessary to afford RHND the opportunity of explaining what had happened. Amelia Walker of 1 Crown Office Row represented the hospital in these proceedings.
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Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
It 
Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.
OPQ v BJM [2011] EWHC 1059 (QB – 
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