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This is Wessen Jazrawi’s final roundup on the UK Human Rights Blog as she is moving onto pastures new. Thanks to Wessen for her fantastic series of fortnightly roundups – Adam and the UKHRB team.
Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord 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.
The most significant news of the week has been the decision by the Supreme Court in the case of Yunus Rahmatullah which we consider below. In other news, time is fast running out for the UK government to act on prisoner voting and the European Court displayed the limits of its intervention on domestic violence. Also in today’s roundup is the inaugural list of upcoming UK human rights events – if you would like to add an event to the next roundup, please email.
A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.
Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.
If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.
As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:
R (on the application of S) (Claimant) v Secretary of State for the Home Department (Defendant) & (1) Amnesty International & AIRE Centre (2) United Nations High Commissioner for Refugees (Interveners) (2010) – Read judgment
The Court of Appeal has ruled that the EU Charter of Fundamental Rights (“the Charter”) could be directly relied on in the UK in a decision on the removal of an Afghan asylum seeker to Greece.
This Charter combines the rights guaranteed by the European Convention on Human Rights and Freedoms 1950 (“ECHR”) with the fundamental social rights set forth in the European Social Charter and in the Community Charter of Fundamental Social Rights of Employees. The decision could see the introduction of “social and economic” rights into the UK for the first time, but it could also place an unmanageable burden on member states to comply with the wide-ranging charter.
A reference to the European Court of Justice will now be made in respect of the application of the Charter in the context of return of asylum seekers to Greece under the Dublin Regulation. The Regulation is the cornerstone of EU refugee law, establishing a system of determining responsibility for examining asylum claims and ensuring that each claim is examined by one Member State rather than allowing multiple applications for asylum submitted by the same person in several Member States with the sole aim of extending their stay in the EU.
The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.
The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.
In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.
In relation to the UK, Amnesty’s report condemns the UK’s continuing reliance on “diplomatic assurances” in deportation cases where individuals were likely to be at risk of torture or other abuse if sent to countries where the Government accepts they would otherwise be abuse, in particular Algeria and Jordan. The report summarises that:
Reports implicating the UK in grave violations of human rights of people held overseas continued to emerge. Calls for independent investigations into the UK’s role in these violations went unheeded. The government’s attempts to return people to countries known to practise torture on the basis of “diplomatic assurances” (unenforceable promises from the countries where these individuals were to be returned) continued. The European Court of Human Rights found that, by detaining a number of foreign nationals without charge or trial (internment), the UK had violated their human rights. The implementation of measures adopted with the stated aim of countering terrorism led to human rights violations, including unfair judicial proceedings.
The Economist has provided a useful analysis of the Coalition Government’s proposed policies on civil liberties.
The article highlights the fact that the policies detailed may not represent the transformative change which Nick Clegg suggested in his reform speech, but rather “uncontroversial quick wins” which will be dwarfed in policy terms by the incoming government’s policing and immigration policies:
The disagreements can probably be haggled away, with the Lib Dems getting their way (eventually) on human rights in return for agreeing to control orders. Coalition government is such a novel and interesting thing that almost any fudge or u-turn can be passed off as a natural product of the “new politics”, at least for now. Continue reading →
The Coalition Government is only a few days old but it is already receiving a cautious welcome from civil liberties commentators and bloggers, with all eyes on significant policy commitments in the Con-Lib deal. The previous government enacted major civil liberties legislation within a year of taking power; the question now is whether the Coalition has the time, will and co-operative potential to fulfil its lofty promises.
In its final years, New Labour was regularly criticised on civil liberties issues, particularly in relation to anti-terrorism law. But it is undeniable that within around a year of coming to power it had enacted a major piece of civil liberties legislation in the Human Rights Act 1998, which was followed shortly after by two others; the Data Protection Act 1998 and Freedom of Information Act 2000. Some, such as the Human Rights in Ireland Blog, say that sadly this was a high water mark and not to be repeated.
The Con-Lib coalition has already made significant early promises. The focus of commentators has been on the cabinet appointees who will influence law and order policy, as well as the surprisingly full civil liberties section in the Con-Lib Coalition agreement. Just as important, however, is what has been left out.
Lord Neuberger, the Master of the Rolls (head of the Court of Appeal), has only been in post for six months but has already made significant waves, particularly in a series of judgments on the impact of terrorism law on civil liberties. In a speech yesterday, he discussed the experience of having his judgment censored during the Binyam Mohamed appeal.
He used an old Woody Allen joke to describe the experience, saying that his “favourite of his aphorisms is I’m not afraid of dying – I just don’t want to be there when it happens.” He continued that the this has some resonance for him now, as “I’m not afraid of changing my judgments – I just don’t want to be there when I do.”
The tone of the speech was light – Lord Neuberger has been praised for his unusually (for a judge) affable manner – but it does provide an opportunity to take stock of the Master of the Rolls’ eventful first six months in post.
An eventful six months
Lord David Neuberger turned down the chance to be an inaugural member of the UK Supreme Court in order to head up the Court of Appeal, the second highest appeal court. He had already been highly critical of the evolution of the House of Lords to the Supreme Court. Six months later, it already seems clear that the Court of Appeal under its new Master of the Rolls is to be an activist court, and particularly in relation to civil liberties.
We posted last week on the three provocative linked judgments, each written by Lord Neuberger and Lord Justices Maurice Kay and Sullivan, released as a triptych on the same day. The appeals all related to terrorism legislation, and each judgment sought to limit the ability of the Government and security services to keep evidence secret – from the public and even the parties to the litigation – in civil trials. A fourth, relating to control orders in a criminal context, was also released on the same day.
The security services will see the judgments as a fly in their ointment, arguing that the protection of the public from terrorism sometimes trumps the principle of open justice, that justice is done but is also seen to be done. The Government will say in the inevitable appeals to the Supreme Court that the Court of Appeal judgments have stymied their ability to fight terrorism, making it impossible in future for the security services to keep sensitive information from the public domain.
Censorship and the Binyam Mohamed affair
Whilst the three linked judgments were important, by far the most controversial incident involving Lord Neuberger’s court was the censoring of part of a judgment in an appeal relating to Binyam Mohamed (see our post). The court ordered that an email concerning MI5’s knowledge of Mr Mohamed’s alleged torture be disclosed. But part of Lord Neuberger’s judgment, the now notorious paragraph 168, was sharply critical of MI5’s involvement in the material events as well as their conduct in the litigation. Upon an application by the Government, the paragraph was briefly sanitised, and then eventually restored to its original wording.
Lord Neuberger spoke about the experience of “seeing one paragraph of a judgment being discussed in op-ed pieces, headlines. TV and radio bulletins and interviews, and, I imagine, the tweets.” He continued:
One thing the Binyam Mohamed case did teach me was that even a Master of the Rolls should not tempt fate. The day before we initially handed down judgment in the case, the Lord Chief Justice asked me how I was getting on with the new job after my first 20 weeks. Blithely ignorant of what was to happen the following day, tempting fate, I said that, for the first time I was beginning to feel in control of things. Let me tell you: one is never in control of things, above all when one thinks one is. As Woody Allen said, If you want to make God laugh, tell him your future plans. Although my favourite of his aphorisms is I’m not afraid of dying – I just don’t want to be there when it happens. I suppose that that has some resonance for me now: I’m not afraid of changing my judgments – I just don’t want to be there when I do.
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A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the 
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