Human Rights Act
31 December 2013 by Adam Wagner
What a year! As the UK Human Rights Blog approaches 2,000 posts and three million hits since its launch in March 2010, below is a link to a summary of the year in stats. No great surprises as to the most popular posts, which track the most controversial issues in human rights.
The main thing to report is that the blog remains extremely popular, with almost 1.2 million hits in 2013 alone, as well as tens of thousands of regular readers and subscribers. Thank you to the contribution of all of our bloggers, both from 1 Crown Office Row (particularly the indefatigable Rosalind English and David Hart QC) and elsewhere, to our wonderful rounder uppers (Daniel Isenberg, Sarina Kidd and Celia Rooney) and to our fantastic commenters who keep us on our toes all over social media.
This year has been the toughest yet for me in keeping the blog ticking along at the pace you are all used to (I have another full time job – being a barrister), but thankfully I have just about managed it. Unfortunately, this has meant I haven’t been able to post as much as I like but I continue to be very proud of the blog’s achievements and influence.
In light of the Conservative Party’s impending plans for human rights reform (which, as was pointed out by Neil Crowther on Twitter, looked to be tracking Dominic Raab’s 2010 blueprint and 2012 bill pretty closely), 2014 is likely to be another interesting year. As always, thanks to our still rather shiny Human Rights Act, there will be plenty of fascinating decisions from our courts too.
All the best and happy new year to all.
Click here to see the complete end of year report.
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16 October 2013 by Rosalind English
R (on the application of Maya Evans) v Secretary of State for Defence, with Associated Press intervening [2013] EWHC 3068 (Admin) – read judgment
In “Evans (No. 1)”, a 2010 case concerning the transfer of suspected insurgents for questioning in certain military centres in Afghanistan, the High Court had ruled, partly in an open judgment, partly in closed proceedings, that UK transfers to NDS Kandahar and NDS Lashkar Gah could proceed without risk of ill treatment (which is contrary to UK policy), but that it would be a breach of the policy and therefore unlawful for transfers to be made to NDS Kabul. It was subsequently discovered that there had not been jurisdiction to follow a closed procedure in that case, but what was done could not be undone, so the confidentiality agreements and the closed judgment remained in force.
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25 September 2013 by Rosalind English
J.D. Heydon: Are Bills of Rights necessary in common law systems? – read lecture
Former Australian High Court Justice Heydon’s thought-provoking speech questioning the efficacy and indeed the very merits of the Human Rights Act deserves reading in full, but the following summary highlights its main features and should encourage readers to immerse themselves in the lecture.
Proponents of human rights instruments urge their necessity on society because they gesture toward a morality more capacious than the morality of our tribe, or association, or nationality. The forum of human rights is one in which our allegiances are not to persons or to wished-for outcomes but to abstract norms that are indifferent to those outcomes. That is why the Human Rights Act has around it what Heydon calls an “aura of virtue” that would make its repeal extremely difficult from a political point of view, even though it is legally and practically possible.
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12 August 2013 by Rosalind English
Navarathnam v Secretary of State for the Home Department [2013] EWHC 2383 (QB) – read judgment
There was no unfairness in the Secretary of State for the Home Department refusing a Sri Lankan asylum seeker leave to remain in the United Kingdom, despite the ruling from the Strasbourg court that to return him would violate his rights under Article 3 of the European Convention on Human Rights 1950.
A decision had been made to grant the applicant six months discretionary leave to remain but he had absconded before it could be implemented, and by the time he resurfaced the secretary of state had been entitled to review the case and determine that the circumstances in Sri Lanka had changed so that he was no longer at risk if returned.
Factual Background
The claimant was a Sri Lankan national who had been subject to removal action after his asylum claim was refused. In 2008 the Strasbourg Court declared that the circumstances in Sri Lanka were such that his expulsion to Sri Lanka would violate the prohibition on torture and inhuman treatment under Article 3 (AA v United Kingdom). The UK authorities consequently confirmed that removal directions would not be applied to him, and stated that he would be granted six months discretionary leave to remain (DLR).
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15 May 2013 by Adam Wagner
A quick post to draw your attention to the British Institute of Human Rights’ excellent new publication, Mental Health Advocacy and Human Rights: Your Guide (PDF).
The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:
This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems. This guide has been produced with Mind Brighton and Hove, Wish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.
Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.
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12 March 2013 by Rosalind English
R (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment
This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.
Background
In August 2012, the defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism.
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2 December 2012 by Adam Wagner
You know those films where a couple spend the first two acts hating each other until, possibly at night when it is raining, they realise they have been in love all along? It seems that following the Leveson Inquiry report, a winter romance is developing between the Mail on Sunday and the Human Rights Act.
In Bombshell by Leveson’s own adviser: His law to gag press is illegal as it breaches Human Rights Act, the Mail reveals an interview with Shami Chakrabarti, director of human rights advocacy organisation Liberty and also advisor to the Leveson Inquiry, in which she argues that any new law that made the government quango Ofcom the ‘backstop regulator’ with sweeping powers to punish newspapers would violate Article 10 of the European Convention On Human Right, which protects free speech (Update: for more, see this post by Hugh Tomlinson QC – he disagrees with Chakrabarti, although also points out she has been misrepresented).
It only seems like a few months ago (actually, it was only a few months ago) that a Mail editorial thundered: Human rights is a charter for criminals and parasites our anger is no longer enough. As Private Eye might say… just fancy that!
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9 November 2012 by Guest Contributor
Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 – Read judgment
Updated – the first two paragraphs of this post have been amended as they were factually inaccurate. Many apologies for this.
Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied.
The case concerned claims brought by the families of five men killed or injured in south-east Iraq. Corporal Allbutt was killed and Troopers Twiddy and Julien injured in Challenger II tanks in fratricide, or ‘friendly fire’, incidents on 25 March 2003. Privates Hewett and Ellis and Lance Corporal Redpath were killed in their Snatch Land Rovers by improvised explosive devices (IEDs) on 16 July 2005, 28 February 2006 and 9 August 2007 respectively (the ‘Snatch Landrover claims’).
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6 November 2012 by Martin Downs
REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – read judgment / press release
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
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24 October 2012 by Guest Contributor
Debate about whether the Human Rights Act (HRA) might be replaced by a new UK Bill of Rights often dwells on the potential loss, or at least weakening, of the legal route to accountability and redress for victims of human rights violations. An event next month in Liverpool reminds us how much more might be lost if the HRA were to be scrapped or watered down. In particular, it highlights the significance of section 6 of the Act, which requires all public authorities to act in a way which is compatible with European Convention rights unless primary legislation requires them to act otherwise.
The event in question is the launch of the latest results of the Human Rights in Healthcare programme. The programme was set up in 2006 by the Department of Health and the British Institute of Human Rights; in 2011-12, it was led by Lindsey Dyer of Mersey Care NHS Trust. Under its leadership, pilot NHS Trusts have used human rights to design and run services in areas as diverse as dementia care, acute hospital settings, district nursing and care homes.
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10 September 2012 by David Hart KC
Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?
Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.
If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.
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4 August 2012 by Rosalind English
A fascinating article by SOAS EU law specialist Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”
In a wide ranging analysis of the abiding obsession with Nazi Germany in the British media and elsewhere, as well as the “strange sado-masochism” of Germany itself, Gunner Beck demonstrates how effectively this prejudice creates and fosters confusion about the current crisis in the Eurozone and the reaction of some of its members to German demands for closer scrutiny. He asks us to question why German history
is still largely reduced to the twelve years from 1933 to 1945, and why it still seems impossible in Britain to criticise any aspect of German economic or foreign policy, especially on EU matters, without some kind of Nazi connotation or similar historical insinuation lurking somewhere in the background… Why has nearly a lifetime of peaceful and liberal-democratic development in Germany done so little to put the Third Reich into some kind of historical perspective?
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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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6 July 2012 by Rosalind English
R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment
This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.
Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.
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6 June 2012 by Rachit Buch
Last week the UN Human Rights Commissioner published the draft report of the second Universal Periodic Review (UPR) of the UK’s human rights record (draft report here, webcast of the UPR session here). The UPR involves delegations from UN member states asking questions and make recommendations to the UK government on the protection of human rights, which the government will consider before providing its response. The report is extremely wide-ranging, perhaps to its detriment, though many valuable and interesting insights are provided.
The UPR process was established in 2006. It involves a review of all 192 UN member states once every four years. As readers of this blog will know, the protection of human rights has a troubled recent history in the UK, with newspaper campaigns against “the hated Human Rights Act” providing the background to government pronouncements on human rights that veer from the sensible to the ridiculous. In this context, the UPR provides a valuable attempt at a serious assessment of human rights in this country.
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