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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/36/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
Israeli PM Benjamin Netanyahu reaffirmed Israel’s rejection of Hamas’ offer for the return of all hostages in return for the end of the war in Gaza on Sunday, claiming such a deal would ‘leave Hamas intact’ and render ‘the next October 7th only a matter of time’. The main conflict at the peace negotiations underway in Cairo appears to remain whether a ceasefire would be temporary, allowing Israel’s recovery of hostages, or permanent, as Hamas insists it must be. The US State Department also announced this week that they have found five Israeli military units committed gross violations of human rights before October 7th. Israel claims corrective action has been taken against four of these units but has declined to give any details. A spokesperson for the Secretary of State declined to confirm whether the US would therefore impose sanctions in line with the Leahy Law, which prohibits the US from allocating funds to foreign forces in the light of evidence of gross human rights violations. Netanyahu has said that ‘to impose a sanction on a unit in the IDF [would be] the height of absurdity and a moral low’ at a time when Israeli soldiers ‘are fighting the monsters of terror’. Meanwhile, the International Court of Justice ruled in a 15-1 vote last week against imposing emergency measures to prevent military exports from Germany to Israel in a case brought by Nicaragua earlier this year. However, the Court also declined to throw out Nicaragua’s case in its entirety, taking the opportunity to ‘remind all states of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used’ to violate international law.
The debate about single-sex spaces has come back into the news this week after ministers have announced plans for transgender patients in hospital to be treated in separate wards. The Government argues that there is a legitimate basis for the segregation and that the measures are proportionate, thus preventing the policy from breaching the Equality Act 2010 or the ECHR. The proposals have received cross-party support; Sir Keir Starmer supported the proposition in an interview on ITV’s Good Morning Britain, stating that his views on gender ‘start with biology’. The plans were announced amongst other changes proposed to the NHS Constitution, including the right for patients to insist on having their care carried out by a doctor of their biological sex. Kemi Badenoch, Minister for Women and Equalities, has made a call for evidence of organisations who are ‘wrongly stating that people have a legal right to access single-sex spaces according to their self-identified gender’. The information will be used to ensure the Government’s ‘policymaking continues to tackle any confusion’ so that ‘single-sex spaces can be maintained’. Matthew Taylor, chief executive of the NHS Confederation, pleaded following the announcement that the NHS not be ‘dragged into a pre-election culture war’. Ministers should rather be ‘bringing forward detailed plans to improve NHS funding, tackle the decrepit state of many health facilities and get waiting times for A&E care and planned surgery back to the levels that existed when the constitution was first published in 2012.’
In the Courts
Several groups have announced legal challenges to the UK’s Rwanda Migrant Scheme in the wake of the passing of the Safety of Rwanda Bill in April. Asylum Aid announced last Friday their intent to challenge the legality of a Home Office policy document published last week on the grounds that it ‘fundamentally misunderstands the Act’. The policy requires caseworkers to consider Rwanda safe even in the face of compelling evidence that Rwanda would not be safe for the individual – ignoring Section 4 of the Act which provides a limited right to appeal against removal on the grounds that Rwanda would not be safe given the asylum seeker’s individual circumstances. The FDA Trade Union has also commenced proceedings on the grounds that the policy creates a conflict for civil servants between their obligations under the Civil Service Code and following the instructions of ministers. The Civil Service Code imposes a legal obligation upon civil servants to ‘uphold the rule of law’, which may not be possible if given instructions by a minister to ignore a Rule 39 Order from the ECHR – a breach of international law. Dave Penman, General Secretary for the FDA, has emphasised that the legal action is not a political decision nor about the policy itself, but about protecting civil servants and ‘the integrity of the Civil Service Code’. The case is to be heard the first week of June. In the meantime, detentions have begun for the first migrants set for removal to Rwanda, with more to come over the next few weeks. It has been suggested detentions have begun so far in advance – over nine weeks before the departures of the first flights – in anticipation of legal challenges. Earlier this week, a bus intended to remove asylum seekers from a South London hotel for transfer to the Bibby Stockholm barge had to leave empty after protestors surrounded the vehicle in a successful attempt to disrupt the removal. 45 protesters were arrested in total following the clash with over 100 Metropolitan police officers.
The Supreme Court has ruled unanimously that the lack of protection given to workers on strike constitutes a breach of their human rights. The right to strike is protected under Article 11 ECHR, which ensures freedom of assembly and association. However, UK domestic law provides workers with no protections against detriments short of dismissal for exercising that right. While s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protected workers from detriment for engaging in trade union activities, strike action has not been considered to qualify – a situation which the Supreme Court said ‘nullifies the right to take lawful strike action’. The Court found that the current legal position fell short of a fair balance between the interests of employers and Article 11 rights, and consequently has declared the relevant statute incompatible with human rights. A significant victory for worker’s rights, the Claimant, Fiona Mercer, has said: ‘I am delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff.’ It remains to be seen whether legislation will now be amended to protect the rights of striking workers against detriment. While the government are under no legal duty to respond, Professor Alan Bogg, who was part of the Claimant’s legal team, has suggested not to do so would be ‘constitutionally surprising’.
The Court of Appeal in Northern Ireland has ruled it is not a breach of human rights for schools to exclusively teach about Christianity in religious education classes. The Court upheld a previous finding that the curriculum is not taught in an ‘objective, critical, and pluralistic manner’ and stated that the finding was ‘capable of constituting evidence supporting an inference that the forbidden line (of indoctrination) had been crossed’. However, this did not breach Article 2 Protocol 1 of the ECHR – the right to education – as parents are granted an unfettered statutory right to withdraw their children from religious education and collective worship. The law in Northern Ireland demands that state-funded schools organise ‘collective worship’ in at least one assembly per day; while parents can withdraw their children from this activity, pupils are not granted the right to withdraw themselves. The Court recognised the ongoing review into teaching in Northern Ireland, suggesting that policymakers may soon implement a ‘refresh to the Northern Ireland curriculum that will inevitably include consideration of religious instruction to take into account the complexion and changing needs of our society’. The Claimant intends to appeal to the Supreme Court.
In his speech at yesterday’s Conservative Party conference, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. Last night, however, The Scotsman newspaper quoted a Scotland Office spokesman as saying that the change would not apply in Scotland. According to the article, the spokesman “confirmed that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot by removed [by Westminster].’” As reported, this statement is seriously misleading. However, it does highlight genuine difficulties that devolution creates for the implementation of plans to reform human rights law. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular all-singing, all-dancing extravaganza 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, a group of MPs investigating drones were advised that large amounts of GCHQ surveillance is likely to be illegal, and the Conservatives continued their push for a Bill of Rights. Meanwhile, the Council of Europe Commissioner for Human Rights argued that anti-Semitism is alive and well in Europe.
After some quieter times earlier in the year, last week saw no fewer than two Supreme Court judgements and twenty Court of Appeal (Civil Division) decisions.
However, the dominant legal and political story of the week (the ubiquitous Brexit aside) concerned criticism of the Home Secretary Sajid Javid, after reports emerged about the death of the child of Shamima Begum. The 19-year-old left East London to travel to Syria and join the Islamic State aged 15. Javid had stripped Begum of her British Citizenship on the basis that she was a dual national of Bangladesh. News broke this morning that the Home Office had removed citizenship from a further two individuals who had left under similar circumstances.
The High Court in Belfast struck down sections 12 to 16 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 on Friday. The law granted automatic anonymity to people who are suspected of sexual offences where an allegation has been made to the police or the police have taken any step to investigate the offence, prohibiting reporting which might lead to the identification of such an individual. The prohibition only applied pre-charge, but continued for the duration of the suspect’s life and 25 years thereafter. The court found that the law was incompatible with Article 10 of the European Convention on Human Rights and did not strike a fair balance in public interest journalism cases, observing that “[p]ublic interest journalism serves a vital role in any democratic society”.
In other UK news, three prisoners were taken to hospital on Friday after disorder at HMP Parc, a prison in Bridgend, Wales, which is run by the private security firm G4S. 10 prisoners have died at the prison in the last 3 months. Families of those who have died at the prison had held a demonstration outside the prison earlier the same week. Deborah Coles, the director of INQUEST, said that “[t]he level of death and disorder at prisons like this one shows a complete failure of accountability on the part of government and a loss of control by ministers”.
In international news
An investigation by the Guardian and the Israeli-based magazines +972 and Local Call has alleged that Israel has deployed its intelligence agencies to surveil, pressure, and allegedly threaten senior ICC staff over the last decade. Israeli intelligence allegedly captured the communications of ICC officials, intercepting phone calls, messages, emails and documents. Yossi Cohen, the former head of Israel’s foreign intelligence agency, allegedly threatened Fatou Bensouda, a former ICC prosecutor, in an attempt to pressure her to abandon a war crimes investigation relating to Israel’s activities in the occupied Palestinian territories. The Guardianreported that Cohen’s activities were “authorised at a high level and justified on the basis that the court posed a threat of prosecutions against military personnel”. Cohen is alleged to have told Bensouda “[y]ou don’t want to be getting into things that could compromise your security or that of your family”. A spokesperson for Israel’s prime minister’s office said in response to the investigation: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.”
On Wednesday the European Commission announced that it considers that there is no longer a clear risk of a serious breach of the rule of law in Poland, and that it would therefore close the Article 7 procedure against Poland which had been triggered in 2017. Article 7 of the Treaty of the European Union allows the EU to suspend certain rights from a member state. The Commission stated that Poland has introduced legislative and non-legislative measures to address concerns regarding the independence of the judiciary, and that it will continue to monitor the implementation of those measures. Human Rights Watch criticised the move as premature.
In the courts
On Thursday the High Court of the Hong Kong Special Administrative Region delivered its verdict for 16 of the 47 activists and former politicians known as the ‘NSL 47’. The 47 were charged with conspiracy to subvert state power under the new National Security Law, which was passed in March this year. 14 were convicted, with two being acquitted and the remaining 31 pleading guilty. The charges arose from the activists’ participation in an unofficial primary election in July 2020 to pick opposition candidates for the 2020 legislative elections, which were then postponed. The UK said the case showed how authorities have used the controversial National Security Law to “stifle opposition and criminalise political dissent”. A spokesperson for Beijing’s Office for Safeguarding National Security defended the prosecution, saying the OSNS supported the Hong Kong judiciary’s decision to “punish acts and activities endangering national security according to the law, with no tolerance for any interference by external forces in the rule of law in Hong Kong.”
Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment
The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”. Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May.
In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”. Read my post on that decision here. Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.
It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.
Johnson’s promise to support the LGBTQ+ community also came after the first meeting of the Ban Conversion Therapy Legal Forum, a group of lawyers, academics, cross-party MPs and campaigners, chaired by Baroness Helena Kennedy. The group released a statement advising the government that the “best way of banning conversion therapy is by using a combination of both civil and criminal remedies” and that the legislation “must be human rights compliant”, prioritising the rights of victims and potential victims. The Forum acknowledged a ban might impact certain other rights including freedom of religion and belief and freedom of expression, but said the harm caused to LGBTQ+ people, which “amounts to degrading and inhuman treatment”, justified a proportionate restriction of those rights.
In other news:
The All-Party Parliamentary Group on Democracy and the Constitution released a report on its independent inquiry into whether the rights to freedom of expression and peaceful assembly were respected in the policing of the Clapham Common vigil for Sarah Everard on 13 March and the “Kill the Bill” protests in Bristol from 26-29 March. The report, published 1 July, found that the Metropolitan Police Service (MPS) and the Avon and Somerset Constabulary (A&SC) “failed to understand the nature of the right to protest and how it must be applied in practice” and that their use of power “exacerbated tensions and increased the risk of violence”. The APPG recommended a new statutory code for the right to protest and policing of protests; removing clauses 55-61 of the Police, Crime, Sentencing and Courts Bill; and a consultation on the creation of an Independent Protest Commission.
On 6 July 2021 the European Court of Human Rights (ECtHR) published its judgment in the case of Norman v UK (Application no. 41387/17). The case concerned Mr Robert Norman, an officer at Belmarsh prison, who in 2015 was convicted of misconduct in public office for passing a variety of information to a tabloid journalist in exchange for money. The ECtHR found that, in Mr Norman’s case, the offence itself did not constitute a breach of Article 7 ECHR (no punishment without law): Mr Norman’s conduct was sufficiently serious for it to have been foreseeable that it would constitute a criminal offence. The ECtHR also found that the newspaper’s disclosure of Mr Norman’s activities to the police, and his subsequent prosecution and conviction, did not breach his rights under Article 10 ECtHR (freedom of expression).
R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment
The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.
Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.
Faulkner, R (on the application of ) v Secretary of State for Justice and another [2013] UKSC 23 – read judgment
The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.
These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.
Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants. Continue reading →
George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session [2011] CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion
This was an attempt by a prisoner to argue that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention. Continue reading →
Dillon v United Kingdom (no. 32621/11) – read judgment and David Thomas v United Kingdom (no. 55863/11) – read judgment
Two prisoners have failed in their human rights protest against prison rehabilitation courses in the United Kingdom.
Dillon
The applicant Dillon, currently detained in HMP Whatton, had been given an indeterminate sentence following his conviction for sexual assault. He was given a tariff period of four years. His release after the expiry of this tariff period was subject to the approval of the Parole Board.
He completed the core Sex Offenders Treatment Programme (“SOTP”) in March 2009 and had been assessed as suitable for the extended SOTP in 2010. But then the prison authorities concluded that he was insufficiently motivated to undertake the extended course. He complained that the only way that he could address the risk he presented to the public was by completing the extended SOTP, but his access to this course had been delayed. Continue reading →
The UK General Election takes place today. For the 38% of voters who may yet still change their minds, below are our previous posts on the General Election 2010 and human rights:
The recent critics of Strasbourg judicial activism will, doubtless, be pleased by the Court’s latest Article 10 decision. Free speech campaigners may have more mixed views.
In the case of Donaldson v United Kingdom ([2011] ECHR 210) the Fourth Section held that the application of a serving Republican prisoner alleging a violation of his rights under Article 10 (freedom of speech) and Article 14 (discrimination) was inadmissible.
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In his 
Welcome back to the UK Human Rights Roundup, your regular all-singing, all-dancing extravaganza of human rights news and views. The full list of links can be found 
Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – 
This is the second in a series of posts analysing the UK’s draft “
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