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I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues.
In case you are interested, I have reposted the text of my speech below and as a PDF here. It’s a long-read, but in it I work through why I came to human rights as a career choice and why I think they are important.
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.
Jack Straw, the former New Labour Justice Secretary, has marked the 10th anniversary of the passing into law of the Human Rights Act with an article in the Guardian.
There are two points of interest from the article. The first is that, by my reading at least, the article runs close to an apology for the previous government’s much-criticised anti-terrorism policies. Straw, who amongst other front line roles was Home Secretary from 1997 to 2001 and Justice Secretary from 2007 to 2010, says “It is hard to exaggerate the pressures that those with responsibility encounter when a population, or part of it, is scared.” This meant that the government were under pressure and “sometimes the same people who might have been seeking greater controls on the intelligence services will want to know why we didn’t have more intelligence”.
The Supreme Court has held that the continuation of a prisoner’s solitary confinement for safety reasons was not authorised under domestic rules and incompatible with the right to private life under Article 8 of the European Convention on Human Rights (“ECHR”).
by Fraser Simpson
Facts
The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy. The decision was based on threats made against the appellant. This period of solitary confinement continued until his eventual reintegration into the general prison population in August 2010.
The appellant had originally challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The Scottish courts refused his complaints and held that his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, ECHR.
The Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8.
Compliance with domestic law?
The relevant rules concerning the power to place a prisoner in solitary confinement were, at the relevant time, contained in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 and 2006. Despite the amendment of the Rules during the relevant period, the core provisions relating to the grounds for segregation and the time limits imposed remained the same. The purpose of Shahid’s segregation – to maintain good order and protect him – was not in question. Shahid instead contended that certain time limits contained within the Prison Rules relating to the continuation of a period of segregation had not been complied with. The relevant provision, Rule 94(5), states:
“A prisoner who has been removed from association … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority … prior to the expiry of the said period of 72 hours.”
Three of the orders made authorising prolongation of Shahid’s segregation were made by the Scottish Ministers after the expiration of this 72-hour limit.
The lower courts considered that such delays did not impact upon the validity of the orders that authorised continued segregation. Importance was placed upon the relatively limited extent to which the orders were late (17, 44 and 47 hours) and the fact that the purpose of the reviews, to ensure that segregation was maintained for only as long as necessary, was not frustrated by such limited delays.
Lord Reed, adopting an alternative construction of the Prison Rules, held that any order made after the expiration of the 72-hour period was automatically invalid (see paragraphs 15-18 of the judgment). His conclusion that the late orders authorising continued segregation of the appellant were invalid, and that a period of 14 months of segregation therefore had no legal basis, is important in the context of the Article 8 challenge.
Article 8
The Scottish Ministers accepted that the placement of the appellant in solitary confinement was an interference with his right to respect for private life under Article 8. Consequently, it was for them to show that the measure was in accordance with the law, in pursuance of a legitimate aim, and a proportionate interference in light of the pursued aim.
Lord Reed was quick to point out that his previous conclusion, that the late authorisations had rendered invalid the subsequent segregation, would result in certain periods of the segregation not being “in accordance with the law”. Accordingly, such periods of segregation could not be justified under Article 8(2).
Lord Reed went on to consider that the appropriate prison authorities had not always been independently making the decisions to continue the segregation of the appellant but instead, on some occasions, had been unduly influenced by the decisions and recommendations of a non-statutory advisory body. The need for a statutory decision making power to be exercised by the individual, or body, that has been conferred such a power had not been satisfied (see R v. Deputy Governor of Parkhurst Prison Ex p Hague, [1992] 1 AC 58). Accordingly, there was a failure to satisfy the lawfulness criterion within Article 8(2).
The Supreme Court moved on to consider the proportionality of Shahid’s continued segregation. The lower courts, in holding that the continued segregation was proportionate, opined that it was the only practicable way of dealing with the threats made against the appellant. The Supreme Court, on the other hand, listed a number of potential alternatives to solitary confinement that could have achieved the aim of protecting the appellant from attacks, including relocating the appellant to another UK prison. Irrespective of such alternatives, the Supreme Court decided that earlier steps could have been taken to promote Shahid’s reintegration. A plan to reintegrate the prisoner had only been developed after four and a half years of almost continuous segregation. Failure to take such steps resulted in the segregation being disproportionate and a violation of Article 8.
However, the Supreme Court considered that the appellant had not suffered any prejudice. If the Article 8 violations had not occurred then there was no evidence to show he would have been returned to the general population sooner.
Additionally, the extent to which his right to respect for his private life under Article 8 had been infringed was limited considering the negative attitudes other prisoners harboured towards him.
Accordingly, the Supreme Court considered that there was no need to make an award for damages despite the appellant seeking £6,000.
Article 3
The appellant also complained that the segregation was incompatible with his right not to be subjected to inhuman or degrading treatment under Article 3, ECHR. The European Court of Human Rights has recognised the potentially damaging effect that continued solitary confinement can have upon the mental and social facilities of an individual (see Ahmad v United Kingdom, (2013) 56 EHRR 1, paragraph 207).
However, the use of such measures for disciplinary, security, or protective reasons does not automatically contravene Article 3. In assessing whether the measure was compatible with Article 3, the Supreme Court considered the conditions and duration of the detention as well as the motivation for such a measure and its impact on the appellant.
The Court concluded that the measure did not attain the minimum level of severity to engage Article 3. The appellant was kept in suitable accommodation and the ability to exercise, receive visitors and associate with other prisoners pointed towards the treatment falling short of the Article 3 threshold. Despite the length of the segregation extending beyond four years, the fact it was imposed in the interests of the appellant’s safety were also of relevance.
Comment
The use of segregation in prisons should always be considered as a serious measure. Indeed, the Council of Europe’s Committee on the Prevention of Torture advises that for punitive purposes any stint should be limited to 14 days (see the CPT’s 21st General Report, (2011), page 40).
The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.
However, if the 72-hour limit were strictly applied in this instance, there could be negative practical repercussions. When continued segregation was without legal basis, would the prison officials be under a duty to return the appellant to general population even if this would endanger his safety? An analogous situation was raised by the Inner House in support of their interpretation of the Prison Rules (paragraph 24 of the Inner House Judgment). Lord Reed answered these concerns by outlining that the officials would also be subject to a duty under s.6(1) of the Human Rights Act to secure the safety of the prisoner in accordance with Article 2 and 3, ECHR. If there was a serious risk to life then the prisoner could remain in segregation in accordance with domestic law using such protections as justification.
Interestingly, such an argument was not substantively raised on behalf of the Scottish Ministers in order to justify the periods for which there was a lack of authorisation.
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 →
It emerged this week that Dominic Cummings drove 250 miles from London to Durham with his wife and child to be with his parents, while his wife was experiencing symptoms of COVID-19. In so doing, Mr Cummings appears to have flouted the government guidance of which he was one of the architects. Leading Tory MPs have called for the Prime Minister to sack Mr Cummings, but he has refused to do so, saying that Mr Cummings “followed the instincts of every father and parent”, and “has acted legally, responsibly, and with integrity”.
Apparently in response to the incident, a rogue Civil Service employee tweeted from the official Civil Service Twitter account “Arrogant and offensive. Can you imagine having to work with these truth twisters?” The Tweet was swiftly deleted, and a Cabinet Office investigation is under way into how it was released.
The situation in Hong Kong has escalated again this week, as Beijing gears up to enact Article 23 of the Basic Law, Hong Kong’s ‘mini-constitution’ of 1997, and impose national security laws to prohibit “treason, secession, sedition [and] subversion”. Protesters have been out in force in defiance of coronavirus restrictions, and police have repeatedly made use of tear gas, pepper spray, and water cannons. Notably, protesters have started to call for full independence for Hong Kong, which has not previously been one of the pro-democracy movement’s official objectives.
R v Michael Peter Lyons [2011] EWCA Crim 2808- read judgment
Moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge, the Court Martial Appeal Court has ruled. The appellant was not entitled to disobey a lawful command on the ground of conscientious objection.
At the age of 18 the appellant had volunteered for the Royal Navy and under its auspices was posted to submarines as Leading Medical Assistant. Five years in to his service, he was told that he would be deployed to Afghanistan. He applied for discharge on the basis that he objected to the UK’s role in Afghanistan. His application on grounds of conscientious objection was refused. Before his appeal against this refusal was decided he was ordered to undertake a pre-deployment weapons training course, because of the risk all personnel faced in that theatre, combatant or not. On refusing to submit to this he was convicted of insubordination.
In this appeal against his sentence he argued that Article 9 protected him from active service from the moment when he told his commanding officer of his objections, until his appeal on grounds of conscientious objection was finally determined. He also contended that he had protected status under the Geneva Convention 1949 and it was unlawful to require him to undergo weapons training. His appeal was dismissed. Continue reading →
We posted previously on Grant and Gleaves v MOD , giving a summary of the claims and the circumstances of the claimants. This case is interesting chiefly in the judge’s approach to the interpretative obligation of UK Courts under Section 2 of the Human Rights Act, which enjoins them to “take account” of Strasbourg rulings. Mr Justice Hickinbottom made it very clear at the outset that he did not consider this to be a command to follow slavishly every decision made by the European Court of Human Rights to the letter:
in considering an issue involving a Convention right, Section 2 of the Human Rights Act 1998 requires a domestic court to “take account of” the judgments of the European Court of Human Rights in Strasbourg (“the Strasbourg court”). On its face, that does not bind a domestic court to follow Strasbourg cases: it is simply an obligation to take them into account, so far as they are relevant.
That does not stop him from considering carefully all the Strasbourg jurisprudence canvassed before him. In general, however, most of the cases were ultimately unfavourable to the litigants in this case. Continue reading →
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.
R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108 – read judgment here.
1 Crown Office Row’s John Joliffe appeared for the Secretary of State for Justice in this case. He is not the writer of this post.
The High Court held last week that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs.
Recent claims or defences on the basis of Article 9, the right to freedom of thought, conscience and religion, have mostly been unsuccessful – see our comments on the Catholic adoption agencies, fostering and Cornish hotel cases, as well as Aidan O’Neill’s feature article. However, in this case His Honour Judge (HHJ) Pelling QC held that the failure to even consider a prisoner’s Article 9 rights meant that the decision to discipline him was fatally flawed.
First, when referring to a legal judgment in a speech make sure you get the outcome right. Particularly when prefaced by “I am not making this up”. Secondly, if said speech is being broadcast live, there are plenty of lawyers on Twitter who will enjoy nothing more than tracking down the judgment, reading it and exposing the fact that you have got it wrong.
These lessons are important. But they relate to any amusing but forgettable political gaff. There is, however, a third lesson. There has been for a number of years a trend of wilfully or recklessly misreporting human rights cases. This trend is not just mischievous; it threatens to do real damage to our legal system.
In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
Prisoners will be unable to vote in the general election despite the European Court of Human Rights ruling almost five years ago that the blanket ban was unlawful.
The House of Lords discussed the issue in the small hours of 7 April 2010 when Lord Ramsbotham, former Chief Inspector of Prisons, tabled an amendment to the Constitutional Reform and Governance Bill which would have removed the ban.
Lord Ramsbotham lamented that the Government was “frightened of offending reactionary public opinion by appearing not to be tough on criminals” and “determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.”
The Parliamentary Joint Committee on Human Rights has also expressed serious concern, noting that the Government risks not only political embarrassment at the Council of Europe, but will be in breach of its international obligation to secure the full enjoyment of Convention rights for everyone within its jurisdiction.
Read more
Council of Europe Committee of Minister’s resolution reiterating serious concern about the failure to implement the Court’s judgment before the general election and urging the authorities to rapidly adopt measures, of even an interim nature, for this general election
A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.
The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.
Prisoners could sue if not allowed to vote in the 2010 general election, according to the Barred from Voting Campaign, organised by the Prison Reform Trust.
The group are seeking to remind the Government of the four year old judgment of the European Court of Human Rights in Hirst v UK, which arose out of the 2002 case of R v Home Secretary ex parte Hirst. The European Court held that Section 4 of the Representation of the People Act which prevents prisoners from voting is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights.
The Government has as yet not addressed the Court’s ruling; according to The Guardian, ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate. With the election looming, the Government may well be be vulnerable to a legal challenge.
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I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues. 
The 
R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108 – read judgment 
In a couple of weeks’ time, the government’s relationship with the 
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