European Convention on Human Rights
22 January 2017
Artificial intelligence … it’s no longer in the future. It’s with us now.
I posted a review of a book about artificial intelligence in autumn last year. The author’s argument was not that we might find ourselves, some time in the future, subservient to or even enslaved by cool-looking androids from Westworld. His thesis is more disturbing: it’s happening now, and it’s not robots. We are handing over our autonomy to a set of computer instructions called algorithms.
If you remember from my post on that book, I picked out a paragraph that should give pause to any parent urging their offspring to run the gamut of law-school, training contract, pupillage and the never never land of equity partnership or tenancy in today’s competitive legal industry. Yuval Noah Harari suggests that the everything lawyers do now – from the management of company mergers and acquisitions, to deciding on intentionality in negligence or criminal cases – can and will be performed a hundred times more efficiently by computers.
Now here is proof of concept. University College London has just announced the results of the project it gave to its AI researchers, working with a team from the universities of Sheffield and Pennsylvania. Its news website announces that a machine learning algorithm has just analysed, and predicted, “the outcomes of a major international court”:
The judicial decisions of the European Court of Human Rights (ECtHR) have been predicted to 79% accuracy using an artificial intelligence (AI) method.
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19 July 2016
In the news
Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.
The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.
Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.
In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.
On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.
Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.
In other news:
The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here. The UK Constitutional Law Association Blog provides extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.
Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.
BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.
Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.
In the courts:
Taddeucci and McCall v Italy (judgment in French only)
This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).
Buzadji v the Republic of Moldova
This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.
On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).
UK HRB posts
Whose fair trial prevails? – David Hart QC
Justice for everyone: another Grayling reform bites the dust – Gideon Barth
Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon
The Chilcot Report – an Illegal War? – Dominic Ruck Keene
Another door closes for the Chagossians – Dominic Ruck Keene
Get out the back, Jack? make a new plan, Stan? – Rosalind English
24 September 2015
Yesterday morning, in a speech to civic organisations in Glasgow, First Minister Nicola Sturgeon warned that “no responsible government” would consider repeal of the Human Rights Act 1998 due to the numerous negative consequences, both in the domestic and international sphere, that would result from such a move – (see a transcript of the speech here).
by Fraser Simpson
Proposals for Repeal of the Human Rights Act
It has been a longstanding Tory policy to repeal the Human Rights Act and replace it with a British Bill of Rights. Such a policy is motivated by discontent over a handful of decisions from the European Court of Human Rights (“ECtHR”) that have allegedly “undermine[d] the role of UK courts in deciding on human rights issues”. In October 2014, the then Justice Secretary Chris Grayling announced Tory proposals to treat Strasbourg judgments as “advisory” – irrespective of the potential incoherence between treating judgments in such a way and the UK’s obligations under Article 46, ECHR (see John Wadham’s post here). However, the 2015 Tory manifesto included less specific promises to “scrap the Human Rights Act” in order to “break the formal link between British courts and the European Court of Human Rights”. Little substantive information has been provided on the development of these plans, apart from an intention, included in the Queen’s speech, to conduct consultations and publish proposals this autumn.
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17 August 2015
Laura Profumo serves us the latest human rights happenings.
In the news:
Lurid show-trial of a vulnerable man, the timely vindication of justice being done, and being seen to be done, a CPS volte-face.
Whatever you think of the Janner trial, it’s now in full swing. The former Labour Peer made his first appearance in court on Friday, facing 22 historic child sex abuse charges. The 87 year old’s committal hearing lasted some 59 seconds, after weeks of legal grappling with his defence lawyers. Any doubt over Janner’s dementia was “dispersed instantly” by his arrival, writes The Telegraph’s Martin Evans: flanked by his daughter and carer, Janner appeared frail and “confused”, cooing “ooh, this is wonderful” as he entered the courtroom. The case will now pass to the Crown Court, with the next hearing due on September 1, where a judge will decide whether the octogenarian is fit to stand trial, or whether a trial of fact is a suitable alternative. If the latter course is taken, a jury will decide if Janner was responsible for his charged actions – no verdict of guilt will be found, and no punishment will be handed down.
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24 July 2015
Laura Profumo delivers the latest human rights happenings.
In the News:
Right to die campaigners have sustained yet another setback, following the judgment of R (AM) v General Medical Council last week.
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27 May 2015
Photo credit: The Guardian
Laura Profumo brings us the latest human rights goings on.
In the News:
This afternoon, the new Conservative Government’s legislative plans were announced in the Queen’s Speech. Michael Gove, the recently appointed Justice Secretary, will have to defend his party’s intention to scrap the Human Rights Act, blunting the influence of Strasbourg jurisprudence. As Daniel Hannan observes, Gove faces a “different order of magnitude” in his new role, finding himself up against an “articulate and wealthy lobby” within the legal profession. An “elegant compromise” might be found, Hannan suggests, in amending our extant Bill of Rights to include ECHR freedoms, restoring “our sovereignty and our democracy”.
It is certainly clear that Gove will have to carefully pilot the reforms through Parliament. Lord Falconer cautions that the House of Lords, where the Conservatives don’t have a majority, may prove obstructive:
“If the Conservative measures strike at fundamental constitutional rights, the Lords will throw this back to the Commons”.
The backbencher minority of ‘Runnymede Tories’, forcefully headed by David Davis, will also seek to stall the Bill’s course. Yet, Matthew d’Ancona concedes, “if anyone has the intellectual firepower to square all the circles it is Gove”.
In brighter news, the Republic of Ireland has become the first country to legalise same-sex marriage through popular vote. Some 62% of the electorate voted in favour of the reform, with all but one of the Republic’s 43 constituencies voting Yes. The result comes just two decades after the Irish government decriminalised homosexuality, marking a milestone in Ireland’s divisive religious history. The Archbishop of Dublin, Diarmuid Martin, recognised the vote as a “social revolution”, which requires the Church to “have a reality check, not move into the denial of realities”.
In a prelude to the historical referendum, the ‘Gay Cake’ Case, which has gripped Northern Ireland for the last year, come to a close last week. In a clear decision, it was found that the Christian bakery’s refusal to make a campaign cake the LGBT support group, QueerSpace, amounted to direct discrimination on grounds of sexual orientation. The outcome has not been welcomed by all. TUV leader Jim Allister lamented it a “dark day for justice and religious freedom”, whilst Melanie McDonagh, writing in the Spectator, found the decision inversely “intolerant and discriminatory”, forcing a Presbyterian business to promulgate a message “at odds with their belief”. Yet talk of religious persecution is besides the point, argues academic Colin Murray. The case concerned the “ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium”. It was not, as McDonagh suggests, a case of cake artisans’ ‘right to ice’, but the right of the public to lawfully contract with a business, irrespective of “how that public is constituted”.
Following the decisive vote across the border yesterday, many hope that Northern Ireland, the only part of the United Kingdom where same-sex marriage is still prohibited, will follow suit. Deputy First Minister Martin McGuinness has advocated a referendum: “This is a matter of whether or not we want to live in a modern progressive society that respects minorities”. Now that Northern Ireland has their cake – it remains to be seen whether the idiom will ring true.
In Other News:
- Haile v London Borough of Waltham Forest: The Supreme Court ruled that the appellant had not made herself intentionally homeless when, after learning that she was pregnant, she left her London hostel. As she would have been evicted from the hostel anyway, on giving birth to her child, the Court ruled in her favour. Her lawyer, Nathaniel Matthews, welcomed the decision as one in which “glorious common sense prevailed. Women who become homeless because they have become pregnant must be protected”.
- Vladimir Putin has signed a bill which allows foreign NGOs to be banned from operating in Russia. The law will allow authorities to prosecute NGOs which are designated as ‘undesirable’ on national security grounds. Individuals working for such organisations could face fines, or up to six years’ imprisonment. Amnesty International has condemned the measure as part of the “ongoing draconian crackdown…squeezing the life out of civil society”.
In the Courts:
- Identoba and Others v GeorgiaThe Georgian police failed to protect participants in a march against homophobia from violent attacks of counter-demonstrators. ECtHR held the police had violated the protestors’ Article 3 and 11 rights, in failing to take sufficient measures to prevent the attacks.
- SS v the United Kingdom; F.A and Others v the United Kingdom A case concerning convicted prisoners’ entitlement to social security benefits was held to be inadmissible by ECtHR. The applicants were prisoners in psychiatric hospitals who complained that, under new 2006 regulations, denying them benefits paid to the other patients amounted to unjustified discrimination. The Court emphasised Contracting States’ margin of appreciation in social policy, finding that the differential treatment was not unreasonable, given that the applicants, whilst patients, were also convicted prisoners.
- Gogitidze and Others v Georgia The ECtHR ruled that the forfeiture of a wrongfully acquired property was not in breach of the tenant’s right to peaceful enjoyment of their possessions, under Article 1 of Protocol No.1. As the property confiscated belonged to the former Deputy Minister of the Interior, the Court inquired whether a proportionate balance had been struck between the method of forfeiture and the public interest in combating political corruption. The domestic courts were held to have achieved such a balance.
- ‘Do we need a new Magna Carta?’ The Miriam Rothschild & John Foster Human Rights Trust, and University College London, are hosting a lecture given by Lord Lester QC, on alternatives to the embattled Human Rights Act. The event will take place at 6.15pm, 15th June, at the Institute of Child Health. Please RSVP to firstname.lastname@example.org.If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor, Jim Duffy, at email@example.com
11 May 2015
Photo Credit: The Telegraph
In the news
‘The Conservative Party has won a majority and can implement its manifesto. The Human Rights Act will be scrapped,’ writes Colin Yeo for the Free Movement blog. Such an outcome might not be a foregone conclusion, but Professor Mark Elliott is clear that ‘repeal of the HRA, the adoption of a British Bill of Rights and perhaps even withdrawal from the ECHR are now less unthinkable’.
Questions surrounding the content of the proposed Bill of Rights have therefore assumed increased urgency. A press release issued in October 2014 spoke of limiting the rights of illegal immigrants, travellers, victims of British military abuse and foreigners who commit crimes in the UK. Yet as UKHRB founder Adam Wagner notes, ‘only foreign criminals were mentioned in the manifesto, so it is all to play for.’
The HRA has failed to secure resilience in domestic politics. Benedict Douglas for the UK Constitutional Law blog attributes this failure to an absence in the Act of a ‘justification for rights possession in dignity or any other foundational human characteristic’. Mark Elliott points to the manner of its introduction: little effort was made ‘to engage the general public in what was perceived to be a political and legal elite’s pet project’.
Current discussions could thus present an opportunity, argues Adam Wagner for RightsInfo. A ‘Bill of Rights, done properly with real public involvement might help convince people that human rights are for all of us.’
For those looking to read more about human rights reform:
The Human Rights Act and a Question of Legitimacy – Barrister Austen Morgan considers the advantages of a British Bill of Rights for The Justice Gap.
What does a Conservative Government Mean for the Future of Human Rights in the UK? – Professor Mark Elliot puts together a useful list of recent posts he has written on Conservative plans for reform.
- Michael Gove has been appointed Justice Secretary and Lord Chancellor in the post-election Cabinet. The Telegraph reports here.
- BBC: Two Syrian asylum seekers imprisoned for failing to provide passports have been successful in appealing their convictions.
- The High Court has ruled that a child should be brought up by her genetic father and his male partner, despite objections from the surrogate mother. The Guardian reports.
- The Justice Gap: The Uk Supreme Court has launched an on-demand video catch-up.
- Legal Voice: More than 8,000 lawyers are set to join the London Legal Walk to raise funds for the legal not-for-profit sector
- Mark Freedland and Jeremias Prassl express concerns over the impact and regulation of ‘zero-hours contracts’ for the Oxford Human Rights Hub.
In the courts
The case concerned the imposition of administrative fines on individuals who had been acquitted by the criminal courts of the same offence. The ECtHR found a violation of the right to a presumption of innocence (contra. Article 6 ECHR) and also the right not to be tried or punished twice (Article 4 of Protocol No.7).
UK HRB posts
‘In Conversation with Sir Stephen Sedley’ – As part of LSE’s Legal Biography Project, Sir Ross Cranston will interview Sir Stephen Sedley on his life and career in the law. The event will be held on 19 May in the Wolfson Theatre, New Academic Building. More information can be found here.
If you would like your event to be mentioned on the Blog, please email Jim Duffy at firstname.lastname@example.org
4 May 2015
Photo Credit: The Guardian
In the news
The drowning of several hundred migrants attempting to cross the Mediterranean has dominated headlines in recent weeks, prompting a special meeting of the European Council on 23 April. The UN High Commissioner for Refugees has called for ‘a robust search-and-rescue operation in the Central Mediterranean, not only a border patrol’.
Under the ECHR, migrants rescued at sea cannot be returned if there is a ‘real risk’ of treatment that is incompatible with the absolute provisions of the Convention. Jacques Hartmann and Irini Papanicolopulu consider claims that human rights law therefore creates a perverse incentive for EU Member States not to conduct operations proactively.
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28 April 2015
Mirza v The Secretary of State for the Home Department  CSIH 28, 17 April 2015 – read judgment
On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.
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26 April 2015
Photo credit: Guardian
This week we welcome to the Blog our new team of commentators on Scottish human rights issues – Fraser Simpson, David Scott and Thomas Raine.
Khan v. The Advocate General for Scotland,  CSIH 29 – read judgment.
A Pakistani national refused leave to remain in the UK after expiry of his visitor visa has had his successful challenge to that decision upheld by Scotland’s civil appeal court, the Inner House of the Court of Session.
The request for leave to remain was initially refused under the Immigration Rules due to a lack of “insurmountable obstacles” preventing Mr Khan from continuing his family life in Pakistan. That decision was reduced (quashed) by the Lord Ordinary – a first-instance judge in the Outer House of the Court of Session – as although the decision had been in accordance with the Immigration Rules, the decision-maker had failed to undertake a proportionality assessment of the decision as required under Article 8 ECHR (read the Outer House judgment here).
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14 April 2015
This week’s Round-up is brought to you by Alex Wessely.
In the news:
Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.
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2 February 2014
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.
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6 January 2014
Welcome back to the UK Human Rights Roundup, your regular wholesome takeaway 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.
Welcome to 2014 and Santa has brought us the Defamation Act 2013, which aims to reduce the ‘chilling effect’ of previous libel laws . But as we enter 2014, not all is new. The Conservative Party continues to complain about European human rights. They seek to challenge the ECtHR ban on prison life sentences. How to deal with this? With hundreds of years of imprisonment instead. Meanwhile, today criminal lawyers will refuse to appear at court in order to protest against legal aid and criminal barrister fee cuts.
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4 June 2013
The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.
It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously. He would, no doubt, be surprised at the evolution of the Convention into the system it is today. But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.
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31 March 2013
J1 v Secretary of State for the Home Department, 27 March 2013 – read judgment
A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post
Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.
The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).
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