Search Results for: prisoners/page/44/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
9 July 2012 by David Hart KC
A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.The constitutional framework is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.
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1 June 2010 by Adam Wagner
Protocol 1 Article 2 | Right to free and fair elections
Read posts on this Article
Article 1 Protocol 3 provides as follows:
The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
This Article imposes obligations on States rather than creating rights for individuals. This provision includes the right to vote and the right of candidates to stand for election.
States are under an obligation not to impose any form of pressure as to the choice of candidates at elections: Moureaux v Ors (1983) DR 97.
Protocol 1 Article 3 does not require that every vote is given equal weight; different electoral systems all involve wasted votes and there is no obligation to introduce proportional representation.
Access to the media must not be discriminatory. However, a wide margin of appreciation applies under this Article and the Strasbourg authorities have been slow to strike down national rules relating to election coverage (Tete v France (1987) 54 DR 52).
So there is nothing controversial about the express terms of A1 31, however this Article has become something of a battleground for almost everything the Convention stands for, in the eyes of its opponents as well as its supporters. This is because the Strsabourg Court found, in Hirst v United Kingdom (2006) 42 EHRR 41, that the provision implies that all individuals have the right to vote, and that therefore the UK blanket ban a blanket ban on all prisoners serving a sentence of imprisonment is unlawful. The standoff between the UK and Strasbourg on this matter is as yet unresolved. The reason the argument has become so heated is that it turns on a fundamental question at the base of human rights instruments such as the Convention: Is it the right of the democratically elected Parliament to decide who their electorate should be? See the numerous case reports, news pieces and discussions on the prisoner voting issue here, here and here.
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11 April 2011 by Melina Padron
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.
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3 March 2011 by Adam Wagner
Snyder v. Phelps (09-751), United States Supreme Court – Read judgment
A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
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26 July 2016 by Charlotte Bellamy
Photo Credit: Steve Parsons/PA
In the News
In a new report on the much-delayed Counter-Extremism Bill, the Joint Committee on Human Rights (JCHR) has concluded that the proposed legislation is confusing, unnecessary, and likely to be counter-productive.
Though first announced by the Government in the Queen’s Speech in May 2015, the Bill itself has yet to appear. The JCHR report is a result of what was in effect a pre-legislative scrutiny inquiry into the Government’s proposals, due to the Committee’s concerns that it would be likely to raise significant human rights concerns, specifically where Articles 9 (freedom of religion), 10 (freedom of expression) and 11 (freedom of association) are concerned.
Five key problems which the report has identified are:
- No clear definition of extremism – The Counter-Extremism Strategy, launched in October 2015 (previously covered here) defines extremism as the “vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of those of different faiths and beliefs”. This is currently too vague to be workable as a legislative definition. There is neither a consensus on the meaning of “extremism” nor “British values”. The extent to which a lack of mutual respect and tolerance towards different faiths and beliefs will be unlawful is likely to be particularly contentious.
- Discrimination and religious freedom – The difficulty here is twofold. Measures which impact on those expressing religious conservatism would either operate indiscriminately against any religious conservatism which had no intention of inciting violence (including, for example, Islam, Orthodox Judaism, Evangelical Christianity), or would operate discriminately, specifically targeting Muslims and alienating the Muslim community.
- The “escalator” approach – In trying to tackle extremism by placing restrictions on religious conservatism, the Government has wrongly assumed that violent jihadism necessarily follows from religious conservatism. Yet there is no proof that the two are correlated. The focus should rather be on extremism which leads to violence. Placing restrictions on religious conservatism amounts to suppressing views with which the Government disagree.
- Conflicting duties on universities – Universities are under a duty to promote free speech under Section 202 of the Education Reform Act 1988, which provides that University Commissioners have a duty to ensure that academic staff have “freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.” It is unclear how “controversial or unpopular opinions” will be differentiated from “vocal or active opposition to our fundamental values”, and therefore what will count as extremism.
- The civil order regime – in the Queen’s speech in May 2016, a “new civil order regime” was mentioned, though with little detail. There is concern that ill-defined civil orders, breach of which would be a criminal offence, should not be used by the Government to avoid having to make a criminal case to a higher standard of proof, especially where a proper definition of the prohibited behaviour is lacking. It is likely that these orders may interfere with freedom of religion, expression and association.
The Committee concluded that the Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework for terrorism and public order offences. In their view, the Government has not been able to demonstrate that such a gap exists, and there is a danger that any new legislation would be counter-productive.
Other news
- Turkey has told the Council of Europe that it wants to temporarily derogate from the human rights protections under the ECHR, due to the state of emergency in the country declared by President Erdogan last week. Emma Sinclair-Webb, Senior Turkey researcher at Human Rights Watch, writes that it is unclear whether the current situation meets the required “threat to the life of the nation” criterion for derogation, provided for under Article 15. Even if this criterion is met, derogation from certain Convention rights is not permitted, including the prohibition on torture and inhuman and degrading treatment (Article 3), the right to life (Article 2); prohibition on slavery (Article 4(1)). Though Turkey has pointed to France’s state of emergency powers (extended after the Nice attack) to justify its own derogation, a state of emergency imposed where there are clear signs that the government is ready to crack down more broadly is an “alarming prospect”. Amnesty International has gathered evidence that detainees in Turkey are being subjected to beatings, torture, including rape, in official and unofficial detention centres in the country. Amnesty calls on Turkish authorities to allow international monitors to visit these places of detention.
- A clause in the contracts of Deliveroo workers say that they are not allowed to take their grievances to an employment tribunal, and that if they do they must indemnify the company against all costs and expenses it incurs. Michael Newman, partner at Leigh Day, has said that the clause is likely to be unenforceable as they attempt to exclude or limit established employment rights, and imposed penalties. Deliveroo say that their contracts reflect the fact that riders are allowed to work flexibly on a freelance basis. Deliveroo joins several other companies in the spotlight for their use of self-employed workers, who do not receive the same rights as employees. A group of drivers are currently taking legal action against Uber, arguing that they should be entitled to the living wage, sick pay, and pensions. Uber is arguing that drivers are “partners”, not employees. It has also recently emerged that some workers for parcel firm Hermes have claimed that they earn as little as £5.50 an hour over some periods.
In the Courts
Foulon and Bouvet v France – Mr Didier Foulon and his daughter Emilie were the applicants in the first case. Mr Foulon is a French National and his daughter Emilie was born in Bombay, India. In the second case the applicants were Mr Philippe Bouvet, a French National, and his twin sons Adrien and Romain Bouvet, who were also born in Bombay. In both cases the applicants were unable to obtain recognition under French law of their biological affiliation. The French authorities were refusing to transcribe birth certificates issued in India, due to their use of Gestational Surrogacy Agreements (GPA) in India, which are unlawful in France. The Court de Cassation in both cases provided reasons for the refusal to transcribe the certificates, partly on the basis of fraude à la loi (evasion of the law) due to the conclusion of the unlawful GPA agreements. A violation of Article 8 was found (right to respect for private life) with respect to Emilie Foulon and Adrien and Romain Bouvet.
Shahanov and Palfreeman v Bulgaria – This case concerned the disciplinary punishments given to prisoners for complaining to the prison authorities about prison officers. Mr Nikolay Shahanov, a Bulgarian national, and Mr Jock Palfreeman, an Australian national, are serving a life sentence and a sentence of 20 years respectively in Bulgarian prisons. Mr Shahanov had made two written complaints to the Minster of Justice, in which he accused two prison officers of favouritism towards a prisoner because they were related. Mr Palfreeman had written to the governor of the prison alleging that unnamed prison officers were rude to two journalists who had visited him in prison and had stolen other visitors’ effects from lockers during their visit. Both were found guilty of making defamatory statements and false allegations about prison officers. Mr Shahanov was placed in solitary confinement for ten days and Mr Palfreeman was not allowed to receive food parcels for three months. A violation of Article 10 (freedom of expression) was found in respect of both applicants.
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23 October 2011 by Adam Wagner
Headlines are important. They catch the eye and can be the only reason a person decides to read an article or, in the case of a front page headline, buy a newspaper. On Thursday The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”.
But can it? And did Lord Judge, the Lord Chief Justice, really say that?
To paraphrase another blog, no and no. The headline, which I am fairly sure was not written by Frances Gibb, the Times’ excellent legal correspondent and writer of the article itself, bears no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.
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17 March 2013 by Sarina Kidd
Please welcome our new rounder upper, Sarina Kidd, a student on the GDL course at City University. Sarina joins Daniel Isenberg (our other rounder upper) and replaces Sam Murrant, who has moved on to pastures new after producing a fantastic run of human rights roundups. We wish him all the best and welcome Sarina on to the team – Adam Wagner
Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.
In the News
The Human Rights Act and Strasbourg
The debate continues over the suggestion that a future Conservative government would repeal the Human Rights Act and withdraw from the European Convention.
Earlier this week Lady Hale, the UK’s most senior female judge, warned that her fellow judges would ‘regret’ a decision to repeal the HRA and that such a repeal would allow Parliament to pass laws incompatible with the ECHR.
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29 September 2013 by Adam Wagner
The Conservative Party Conference began today. As has been the case in past years, human rights policy will have a prominent role to play, but much of which is said will be bluster. The Prime Minister has already said that all options are on the table, including withdrawal from the European Convention on Human Rights (ECHR). Expect more tomorrow when Lord Chancellor Chris Grayling and Home Secretary Theresa May step up to the podium from 2:30pm to 4pm.
Judging from the Prime Minister’s comments as well as Chris Grayling’s in the Spectator, it appears likely that this party conference will be similar to previous ones. Government ministers will promise that a majority Conservative government will replace “Labour’s” Human Rights Act with a Bill of Rights – a longstanding Tory policy which also featured in the party’s 2010 manifesto (at p.79). The promise was scuppered after the 2010 election due to demands from coalition partners, the Liberal Democrats. And, the Tories will continue to make vague threats that “people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg” (Grayling, a self-described “staunch Eurosceptic”) and that ECHR withdrawal “may be… where we end up” (Cameron).
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17 June 2012 by Adam Wagner
The current Government often complains about a “democratic deficit” in the courts. It seems that “unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.
The Government seeks to solve the problem by involving Parliament more in the judicial process, the latest and most striking example being the Home Office’s attempt to codify Article 8 ECHR, the right to private and family life, in immigration cases. The Home Office wants fundamentally to alter the role of the courts, hoping that it will “shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules” (see para 39). The argument is that since judges are unaccountable, those who are accountable must be more central in the decisions they make, particularly in sensitive areas such as immigration.
This is attempt to take power away from judges. But why?
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12 June 2013 by Adam Wagner
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
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9 April 2013 by Guest Contributor
‘Working Together to Safeguard Children’ is the lead piece of statutory guidance on… well, working together to safeguard children. Originally published in 1999, a new edition was published in 2006 following the changes brought about following the death of Victoria Climbié. And the next edition in 2010 incorporated recommendations of the second Laming Report which followed the death of Baby P. It had grown longer over time, as we all learned lessons from Haringey; but its growing length was causing concern.
A new version was published last month. The new version was published the week after judgment was handed down in AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013) (my firm represented the Claimants).
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26 March 2020 by Richard Mumford
The following post was written on the morning of 26 of March 2020. Today, 27th of March, the Chief Coroner brought out Guidance 35 on hearings during the pandemic (no. 35), with the proviso that all these issues will be kept under review.
On the 26th of March the Chief Coroner published Guidance Note 34 (“GN34”) on COVID-19 which can be found here. The Guidance Note addresses many of the issues relating to the impact of COVID-19 on the coronial service. We set out below some answers to questions those involved with the coronial system may currently have in mind, taken from the Guidance Note and other sources (“GN34#(No.)” refers to paragraph numbers in the Guidance Note).
1) Are Coroners’ Courts conducting hearings at the moment?
GN34#10 provides that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”
It is also noted that
All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business
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16 November 2010 by Adam Wagner
Updated | One of the many points of interest from yesterday’s announcement that legal aid is to be cut by £350m per year was the underlying justification, put by Ken Clarke in his announcement, that England and Wales spend more on legal aid than other countries.
The Justice Secretary said that “we currently have one of the most expensive legal aid systems in the world“. But where does this often-quoted statistic arise from?
In its consultation document, the MoJ quotes (at para 3.43) a report commissioned from the University of York into comparative international legal aid systems. The report, Efficiency and quality of justice European Commission for the Efficiency of Justice (CEPEJ); International comparison of publicly funded legal services and justice systems, was produced in October 2009 by Roger Bowles and Amanda Perry. It investigated the legal aid systems in Australia, Canada, France, Germany, Netherlands, New Zealand and Sweden and compared these to the system in England and Wales.
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29 September 2015 by Laura Profumo
Laura Profumo brings you the latest human rights happenings.
In the News:
Nicola Sturgeon, the Scottish First Minister, announced last week that it was “inconceivable” that the SNP would support the Conservative plans to scrap the Human Rights Act. Talking to an audience in Glasgow on Wednesday, Sturgeon pledged her unequivocal commitment to block the HRA-repeal. Sturgeon warned that human rights remained a “devolved issue”, meaning that Scottish opposition might well hamper Gove’s forthcoming efforts. Many find sympathy with Sturgeon’s stance. Sturgeon values the HRA as a “careful model” which incorporates human rights protection into UK law, without upsetting our constitutional bedrock, writes Alex Cisneros in The Justice Gap.
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23 April 2010 by Adam Wagner
Lord Phillips
Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.
We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).
On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.
That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.
Update 27/04/10
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A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.
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