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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/40/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
This week sees Baroness Hale sitting for the final time as President of the Supreme Court. Photo credit: The Guardian.
A brief delay to the publication of this article has helpfully afforded this blogger the opportunity to move beyond the political events of last Thursday and instead focus on much more interesting legal matters (more on those later).
However, it would be remiss not to recognise the consequences of last week’s election, which saw the Prime Minister return newly empowered by a sizeable Conservative majority. At the time of writing, proposals were being made to put the legislation required to withdraw from the European Union back to MPs as early as this Friday.
Sneaking in at page 17 of the Conservative manifesto (one page after a commitment to extend the water rebate in the South West) came the party’s offering on law and order. This included commitments to increase the number of police, enhance the use of “fair and proportionate” stop and search, as well as promote longer sentences and the greater use of electronic tags. The manifesto was however silent on some matters which have drawn attention of late, including court closures, legal aid cuts, and previous suggestions from ministers that the Human Rights Act might be amended to protect soldiers from prosecution for acts performed during their time in service. With such a significant majority however, the Government will be in a position to pursue its chosen agenda with enthusiasm, and so these and other mooted at policies, such as reform of the judicial review process, may not be as fanciful as previously thought.
Moving gratefully on from politics, today saw the first day in the case of XX v Whittington Hospital NHS Trust (appealing [2018] EWCA Civ 2832), which also serves as Baroness Hale’s final case as President of the Supreme Court before her replacement on January 11thby Lord Reed. The case provides an interesting example of a scenario in which factual matters combined with absent or inadequate law require the court to consider matters of a deeply public policy nature. Continue reading →
The UK Human Rights Blog launched on 30 March 2010 with a total of 2 readers and a budget of £200. Two years later, despite the budget remaining consistent, the Blog has just surpassed 1,000,000 individual page views and has over 10,000 subscribers over email, Twitter and Facebook. I would like to take a moment to reflect on this success.
As you can probably guess, we are (and I am) thrilled at the response to UKHRB. When we launched, our aim was to provide a new voice in the always colourful but often shrill arena of human rights commentary. We felt that there was a gap in the market (as it were – the blog has been and remains free to access) for a non-ideological legal human rights update service which would be accessible to the lawyers and lay persons alike.
Following David Hart’s guide to taking a human rights point in local and regional courts, here is an attempt to explain what is meant by the requirement set out in Article 35 of the Convention, that any petitioner before the court has to “exhaust” their local remedies before their complaint will be considered.
The rule of exhaustion of local remedies started as an international law principle relating to diplomatic protection. The idea was that a measure of respect should be accorded to the respondent state and its legal rules. In human rights law, the rule of local remedies is based on the principle that states should be primary enforcers of Convention rights. But very soon after the Convention went into operation, certain limitations grew up around the rule as a result of the consideration of the interests of the individual. It was felt that unlike diplomatic procedures, the application of the rule should conform to fairness and not cause the individual undue hardship in securing a reasonably quick resolution in Strasbourg. In effect, petitioners are not prevented from bringing cases straight to the Strasbourg Court without first going through the national authorities, it is simply that if they do so, it is open to the respondent state to assert inadmissibility based on non-exhaustion. In practice this means that when the respondent state is formally informed of the petition and requested to submit observations, it must satisfy the court that remedies have been available and sufficient at the relevant time. Once this is established the burden passes to the petitioner to prove that local remedies have been exhausted.
Of course if the government fails to assert non-exhaustion under Article 35 prior to the Court’s decision on admissibility the matter will proceed to an examination on the merits by default; the government is effectively estopped by its own delay from protesting the point. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular potpourri 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, in order to deport Abu Qatada, there have been mumblings of a temporary departure from the ECHR. Furthermore, Justice Secretary Chris Grayling’s legal services reforms lead to a strike in the North, and the recent ECHR decision to allow the UK’s ban on political advertising continues to generate discourse.
The ICC has issued an arrest warrant against Vladimir Putin for the war crime of the unlawful deportation and transference of children. The Russian commissioner for children’s rights, Maria Alekseyevna Lvova-Belova, has also been issued an arrest warrant. According to Ukrainian government figures, 16,266 children have been deported to Russia since the beginning of the war. Russia is not a member of the ICC and so it is unlikely that the suspects will be arraigned in court, but it will make international travel more difficult and place political pressure on the Russian government. This is the first instance of the court issuing an arrest warrant for the leader of one of the five permanent members of the UN security council.
Donald Trump told supporters on his social network Truth Social that he expects to be arrested on Tuesday and has urged them to stage mass protests. If indicted, Trump would be the first former US president to see criminal charges. The case concerns ‘hush money’ payments made through Trump’s lawyer to porn star Stormy Daniels before the 2016 presidential election. Once all the evidence has been taken, the grand jury will vote on whether to recommend criminal charges to the Manhattan District Attorney, Alvin Bragg, who determines what charges he thinks he can prove beyond reasonable doubt, if any, but there is no deadline on this process. Trump promises to continue his campaign for the 2024 presidential nomination even if he is indicted. He also faces upcoming inquiries into his attempt to overturn the result of the 2020 election.
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. The full list of links, updated each day, can be found here.
by Melinda Padron
In the news
The government announced that a commission would be set up to look into whether the government should bring in a bill of rights in light of all the controversy surrounding the ECtHR. The commission is reported to be composed of experts such as Lord Lester, Helena Kennedy QC and Martin Howe QC, and its merits are already being called into question.
There have been two strong reminders of the importance of maintaining compliance with and membership to the European Court of Human Rights: Aidan O’Neill QC wrote an excellent piece questioning the legal merits of some of Dr Pinto-Duschnisky‘s proposals in his report Bringing Rights back home: making human rights compatible with parliamentary democracy in the UK; while Sir Konrad Schiemann, judge of the Court of Justice of the European Union, made a strong case that by abiding by its decisions, the UK would be serving the greater good of stability amongst its members.
By a narrow 4-3 majority, the Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the extent of GCHQ’s powers to hack into internet services should be subject to judicial review, despite a powerfully-drawn ‘ouster clause’ which sought to prevent the decisions of the Investigatory Powers Tribunal from being questioned by a court.
Lord Carnwarth, who delivered the majority judgement, noted the ‘obvious parallel’ with the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Turning to the ouster clause in the present case, he considered that ‘a more explicit formulation’ might have ousted the jurisdiction of the High Court to consider a challenge to a decision by the IPT, but that, such as it was, the clause was not sufficiently clear to do so.
Lord Carnwarth also stated that: ‘It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.’ Although it was not necessary to decide on the general lawfulness of ouster clauses, he saw ‘a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law.’ Lord Lloyd-Jones, another of the Judges in the majority, remained neutral on this statement.
Lord Carnwarth’s ‘rule of law’ argument was echoed by Caroline Wilson Palow, Privacy International’s general counsel, and Simon Creighton, of Bhatt Murphy Solicitors, which acted for Privacy International. Megan Goulding, a lawyer at Liberty, which supported Privacy International, stated that the ouster clause was ‘not just undemocratic, but a sinister attempt to reduce the safeguards that protect our rights.’
In contrast, Professor Richard Ekins, a Tutorial Fellow in constitutional law at Oxford University, has stated that the ruling ‘violated the sovereignty of parliament.’ Ekins credited the three dissenting judges for their willingness to ‘[give] effect to parliament’s authoritative choice’ to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services.
In the News
The foreign secretary, Jeremy Hunt, has appointed Rita French, formerly his principal private secretary, to a post as the UK’s first human rights ambassador. Hunt put the appointment implicitly in the context of Brexit, stating that ‘as the UK enters a new chapter in its history’ he will ensure human rights are not forgotten in the rush to secure desperately needed free trade deals. Shami Chakrabarti, shadow attorney general, made her skepticism clear: ‘Rita French’s task will be an uphill struggle in a party that has consistently campaigned to scrap human rights instruments and cosied up to every despot in the pursuit of trade.’
The appointment came shortly after Human Rights Watch published a 115-page report condemning the UK government for breaching its duty to protect citizens from hunger by pursuing ‘cruel and harmful policies’ with little regard for children living in poverty. While a government spokesperson dismissed the findings, school staff and food bank volunteers confirmed that the report tallied with their experiences.
On Wednesday, the defence secretary, Penny Mordaunt, announced ‘a statutory presumption against prosecution’ for alleged offences committed in the course of duty more than ten years ago, covering wars in Iraq and Afghanistan. Following the announcement, Mordaunt went further, stating that she would like to see the proposed exemption extended to period of the Troubles in Ireland. Mordaunt’s comments were quickly met with criticism from human rights groups, a string of Conservative MPs, Ireland’s deputy prime minister Simon Coveney, and Sinn Féinn’s deputy leader Michelle O’Neill. An editorial in The Independent argued that the move would set human rights back by decades, allowing ‘the UK [to] opt in and out of the ECHR, depending on whether it is at war,’ while Amnesty UK’s campaign manager for Northern Ireland argues that the move undermines victims’ ‘fundamental rights to justice.’
In Other News
Ukraine responded angrily after ministers of the Council of Europe voted overwhelmingly in favour of allowing Russia to ‘participate on an equal basis’ in the council’s committee of ministers and parliamentary assembly, five years after the country was stripped of its voting rights over the seizure of Crimea. Ukraine’s envoy to the Council stated that the decision was not ‘diplomacy’ but rather ‘a surrender’.
US President Donald Trump has outlined his ‘strongly pro-life’ views on abortion days after Alabama passed a law banning abortion in almost all cases. In a series of tweets, Mr Trump stated that he was against abortion except in cases of rape, incest or ‘protecting the life of the mother’. While Republicans eager to overturn the 1973 Roe v Wade ruling welcome the ban and Trump’s approbation of it, Democratic presidential candidate Elizabeth Warren characterised the prohibition as ‘dangerous and exceptionally cruel’, and Human Rights Watch described the legislation as ‘a shocking abdication of responsibility by Alabama law makers’.
In the Washington Times, Neil Bush called for the release of Marsha Lazareva, a prominent Russian businesswoman imprisoned in Kuwait since May 2018 after being found guilty of embezzling 17 million dinars from the Kuwaiti Port Authority. Her latest hearing has been delayed until 9 June, after the judge recused himself unexpectedly. The manner in which Lazareva was tried and sentenced has been criticised by a number of human rights groups and diplomatic figures, including the former US Representative Ed Royce. Louis Freeh, a former judge and Director of the FBI, expressed concern for Lazareva’s health and wellbeing, and called the refusal of the Kuwaiti authorities to release her on a $33 million cash bail something he had ‘never heard of’ in his years as a judge and advocate. Lord Carlile of Berriew QC, senior counsel for Lazareva, has said that the ‘expert auditor’ on whose testimony much of the evidence relied has since been charged with the forgery of the three documents on which he depended during the case.
In the Courts
R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21: The Supreme Court considered whether the revised benefit cap, introduced by the Welfare Reform and Work Act 2016, s8, to lone parents with children under two years old (i) unlawfully discriminates against parents and/or their children, contrary to ECHR Articles 14 and 8 and the UN Convention on the Rights of the Child Article 3, and/or (ii) is irrelevant. The court concluded, by a majority of 5-2, that the rule engaged ECHR Article 8, but could be justified because it was not manifestly without reasonable foundation. Lady Hale and Lord Kerr, dissenting, considered that a fair balance had not been struck.
Kuteh v Dartford and Gravesham NHS Trust [2019] EWCA Civ 818: The Court of Appeal dismissed an appeal for wrongful dismissal by a nursing sister employed by the Trust. The sister was a ‘committed Christian’ fired for breaching an undertaking not to have inappropriate religious discussion with patients. One of the patients who lodged a complain was told by Mrs Kuteh that if he prayed to God he would have a better chance of surviving a major surgery for bowel cancer which he was about to undergo. ‘Even having regard to the importance of the right to freedom of religion,’ the court concluded that the Employment Tribunal’s decision was ‘plainly correct’, and the Trust’s decision to dismiss Ms Kuteh for misconduct ‘fell within the reasonable band of responses’ in this case.
Updated x 2 – full details of review below | The much-heralded Ministry of Justice budget cuts will be announced shortly as part of the government spending review. Previously, it had been reported that the department’s budget would be cut by around 20%, or £2bn (see our post). However, over the weekend the Observer reported that the cut would be much larger, running to £3bn – around 30% of the total budget – which represents a 50% increase on the original figure.
The justice minister Ken Clarke is believed to have had to take an extra hit “after the defence secretary, Liam Fox, and Michael Gove at education won more generous agreements than previously expected“.
The 1,400 page final report on the inquiry into the death of Baha Mousa has been published today after three years of hearings. The chairman of the inquiry, retired Court of Appeal judge Sir William Gage, has condemned members of the 1st Battalion The Queen’s Lancashire Regiment for their “lack of moral courage” to report abuse and the use of banned interrogation after Mousa died of 93 injuries in British army custody in Basra in 2003.
Mousa was arrested with nine other Iraqi men after 1QLR soldiers found weapons, fake ID cards and military clothing at the hotel where he was working as a receptionist. Continue reading →
Independence and public inquiries – why you need it and how you can lose it
There is a scene in “Yes Minister” in which the beleaguered Jim Hacker is contemplating a public inquiry into the latest failing of his department. He warily suggests to his Permanent Secretary, Sir Humphrey Appleby, that perhaps the judge chairing the inquiry could be leant on to come up with a favourable outcome. Sir Humphrey is outraged at this violation of the separation of powers. Surely the Minister wasn’t serious? After all, wouldn’t it be better to appoint a judge who didn’t need to be leant on in the first place?
Jim Duffy’s recent post on the Contaminated Blood Inquiry – and the importance of an inquiry being independent and being seen to be independent – brought this encounter to mind. The ever more frequent calls for a ‘judge-led inquiry’ must be a source of both pride and concern to the judiciary. Pride as ‘judge-led’ is a synonym for a forensic, thorough and above all independent tribunal to assess the matter in question. We will come to the concern later.
Times have changed since the careers of Hacker and Sir Humphrey. The Inquiries Act 2005 contains provisions intended to secure and display the suitability and impartiality of those charged with conducting a statutory inquiry (see in particular s.8 and 9). When it comes to appointing a judge, the Act provides that the minister must consult with the Lord Chief Justice or another relevant senior member of the judiciary (s.10). Sir Humphrey would be disappointed. Continue reading →
The following is a guest post by Tom Blackmore, the grandson of David Maxwell Fyfe, a politician, lawyer and judge who was instrumental in drafting the European Convention on Human Rights, which has just celebrated its 60th anniversary (see our post). For those who argue that human rights are an invention of continental Europe, this article should provide food for thought:
In 1914 Rupert Brooke wrote:
If I should die, think only this of me:
That there’s some corner of a foreign field
That is for ever England. There shall be
In that rich earth a richer dust concealed;
A dust whom England bore, shaped, made aware,
Gave, once, her flowers to love, her ways to roam,
A body of England’s, breathing English air,
Washed by the rivers, blest by suns of home.
And think, this heart, all evil shed away,
A pulse in the eternal mind, no less
Gives somewhere back the thoughts by England given;
The Sun have printed another correction today in relation to its misleading human rights reporting. The correction, on page 2, can be read online or to the right of this post.
The correction was the outcome of a complaint I made about this article – I posted on it here. The main part of the correction relates to the entirely false claim that “The European Court stopped a British judge imposing a whole-life tariff on Ian McLoughlin”. The reality is that although judges were unsure whether they could impose the orders following Vinter v UK in the European Court of Human Rights, the Court of Appeal clarified in February 2014 that they definitely could. The Sun have now admitted that was the case.
I am happy that the correction has been made although as I have said before, the damage has to a large extent been done as – let’s be honest – how many people read the clarifications and corrections box (which is located immediately adjacent to the eye-catching Page 3…).
But what I found most interesting about the process, which was started by the Press Complaints Commission and concluded by its post-Leveson successor, the Indepenndent Press Standards Orgaisation (IPSO), was the initial response to my complaint (PDF here) by The Sun’s Ombudsman, Philippa Kennedy OBE, which I thought was needlessly aggressive and demonstrates a worrying approach to this issue. I will select a few choice quotes:
McLaughlin & Ors v London Borough of Lambeth & Anor [2010] EWHC 2726 (QB) – Read judgment
The High Court has been asked to consider whether the rule which prevents public authorities from suing in libel – to allow uninhibited criticism of government institutions – has the effect of preventing libel actions being taken by individual managers and employees of those institutions.
This was a claim by the defendants to strike out a libel action on grounds of abuse of process.The claimants are respectively head teacher, director of educational development and chairman of the governors of a primary school in Lambeth. The school was maintained by the first defendant pursuant to its statutory obligations. Now it is an Academy it is maintained by central government.
Things have been quiet recently on the Commission for a Bill of Rights front, with media attention focussed on the upcoming Brighton Conference on European Court of Human Rights reform and the growing controversy over the Justice and Security Green Paper. But this important Commission only has 10 months left to publish its report, and it should be courting public attention, not avoiding it.
There has been limited action on the Commission’s website, with publication of relatively illuminating minutes from the 15 November and 14 December meetings. The website has also published a list of all responses to the recent consultation. Apparently there were over 900 responses to the somewhat scanty discussion paper which was published last year.
Two suggestions. First, in my view, all of the responses should be published on the Commission’s website, not just a list of the respondees. I asked the Commission by email they would be doing so, and they responded:
Updated x 2 | At the risk of sounding like a broken record, The Sun has got it badly wrong on human rights. Again. On 24 August 2014 Craig Woodhouse reported that “Euro judges go against UK in 3 out of 5 cases” (£). This is false and seriously misleading.
I explored this issue in detail back in 2012 when the Daily Mail as well as others claimed that the UK loses 3 out of 4 cases. Since that debacle, the European Court of Human Rights has produced some very clear documents on the statistics page of its website.
According to page 8 of this document, there have been 22,065 applications against UK 1959-2013. That means that 22,065 people or so have brought cases against the UK. Of those cases, there have been 297 resulting in a violation.
I am no statistician but 297 as a percentage of 22,065 is not “3 out of 5”. It is in fact 1.35%. Less than 2 in 100.
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Welcome back to the UK Human Rights Roundup, your regular potpourri of human rights news. The full list of links can be found 
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