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Welcome back to the UK Human Rights Roundup, your weekly buffet 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 news this week has been dominated by issues relating to Article 8 and the right to die. First, we had Tony Nicklinson, a man suffering from locked-in syndrome, and then there was the case of E, a woman suffering from anorexia who was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die. In other news, just when you (or rather, I) thought the fat lady had sung for Julian Assange, there was another twist in the tale as he requested asylum at the Ecuadorian embassy.
XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – Read judgment
The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department [2012] EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.
XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.
Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment
Interest in the “locked-in syndrome” cases currently before the High Court runs high. We posted here on the permission granted to locked-in sufferer Tony Nicklinson to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.
He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)
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 news
This week has seen the Home Secretary Theresa May take on Article 8 – and the courts – with the announcement that she was seeking the backing of Parliament on the limits of Article 8, the right to private and family life, and that she would expect judges to “follow and take into account” the views of Parliament. In other news, the Church of England submitted its opposition to gay marriage in response to the Government consultation, which has now ended, a judge in the Court of Protection ordered that an anorexic woman should be force-fed, and the Supreme Court dismissed an application by Julian Assange to reopen his appeal against extradition.
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 codifyArticle 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? Continue reading →
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 hatedHuman 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.
Updated | In stark contrast to the pageantry surrounding the Royal Jubilee, here is a somewhat sombre update on the Justice and Security Bill, which was published on 28 May 2012 and is currently receiving its second reading in the House of Lords. The Bill aims to introduce Close Material Procedures, that is secret hearings, into civil trials.
Three key documents were published shortly after the Bill, presenting the Government’s case in response to the forceful criticism which the initial proposals generated. First is the Government’s response to the Joint Committee on Human Rights’ scathing report on the proposals. Secondly, the Government’s response to the 90 submissions received in response to the Justice and Security Green Paper consultation. Thirdly, a summary of European Convention on Human Rights issues relating to the Bill, also published by the Government.
Welcome back to the UK Human Rights Roundup, your weekly buffet 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 big news this week has been the unexpected turn of events in the Assange extradition case. Almost immediately after the Supreme Court handed down its judgment that he could be extradited, his counsel Dinah Rose QC threw a spanner in the works… The upshot is that it looks like Assange shall be sticking around for at least another couple of weeks. The other significant news of the week is that the Government has published the Justice and Security Bill.
Writing on the Richard Dawkins website, humanist campaigner Leo Igwe-Ieet declares that there is a gaping hole in the protections listed in international rights instruments.
I have heard it proclaimed at the UN that the rights of women are human rights. I have also heard it proclaimed that the rights of gay people are human rights. These proclamations changed the way human rights are perceived around the globe. Personally I have yet to hear it proclaimed at UN, or at our regional and national human rights bodies that the rights of atheists, agnostics and freethinkers are human rights. I do not want these rights to be implied or assumed as currently the case in most countries. I want them to be expressly declared as universal human rights.
The reason why such explicit protection is urgently needed, the writer claims, is because non-believers are particularly vulnerable in some parts of the world, notably Africa. In parts of Africa where fundamentalist belief holds sway, “religious non-believers are treated as if they are not human beings, as if they do not exist or do not have the right to exist.” The right to freedom of religion is of no avail to those who wish to eschew faith altogether. On the contrary,
freedom of religion is often understood as freedom to profess a religion-the religion sanctioned by the state, by one’s family or community- not freedom to change one’s religion or freedom not to profess any religion at all as contained in article 18 of the Universal Declaration of Human Rights. Continue reading →
Catt v Commissioner of the Police of the Metropolis [2012] EWHC 1471 (Admin) – read judgment
Retention of data on a national database of material relating to a protester’s attendance at demonstrations by a group that had a history of violence, criminality and disorder, did not engage Article 8 of the Human Rights Convention.
The claimant, now aged 87, applied for judicial review of the decision of the defendants to retain data, seeking an order that, as he had not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
Background
The data in issue was essentially comprised of records (or reports) made by police officers overtly policing demonstrations of a group known as “Smash EDO”, which carried out a long-running campaign calling for the closure of a US owned arms company carrying on a lawful business in the United Kingdom. Disorder and criminality had been a feature of a number of the protests along with harassment of the company’s staff. The defendant authority had retained data relating to the claimant’s attendance at various political protests on the National Domestic Extremism Database, and maintained by the National Public Order Intelligence Unit. Continue reading →
Mohammed Othman v Secretary of State for the Home Department, 28 May 2012 – read judgment
This was a further application for bail to the Special Immigration Appeals Commission (SIAC) after the appellant had failed in his application to the Grand Chamber of the Strasbourg Court earlier this month, but had launched an appeal to be heard by SIAC, against the Home Secretary’s refusal to revoke his deportation order.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
A full hearing will take place in October. Until then, bail has been refused and Abu Qatada will remain in detention.
Given the evidence before him, Mitting J had to base his judgment on the assumption that the Secretary of State would not have maintained the deportation order unless convinced that she was in possession of material which could support her resistance to the appellant’s appeal and which could satisfy “the cogently expressed reservations of the Strasbourg Court about the fairness of the retrial”which the appellant would face in Jordan.
Two consequences flowed from these developments, according to the judge. One is that SIAC’s final decision in October is likely to put an end to this litigation. The second is that the risk of Qatada absconding has increased, if he assumes, in the light of the expressed determination of the Secretary of State, that he would not avoid deportation to Jordan by litigation in and from the United Kingdom. Continue reading →
Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very existence of intuitive morality.
US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.
The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet). Continue reading →
The Justice and Security Bill, which proposes to introduce secret ‘Closed Material Procedure’ (CMP) hearings into civil trials, has been published. Here are some useful resources for picking your way through the controversy:
You can access all of the UK Human Rights Blog coverage of the secret trials proposals here, including our exclusive on the Special Advocates’ opposition to the proposals, which became the most damaging aspect of the case against the Green Paper.
Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
Adam Wagner has compared the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK. Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.
The Grand Chamber of the European Court of Human Rights has ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No. 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.
I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today’s ruling means that the ball is now back on the UK’s side of the table.
Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the Court has made clear to the UK Government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the Court’s helpful press release which explains the effect on the UK. Secondly, the Grand Chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the Grand Chamber, in Hirst No. 2. For the full background, see my post from last week or Joshua Rozenberg’s excellent article on Guardian.co.uk.
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Welcome back to the UK Human Rights Roundup, your weekly buffet 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.
XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – 
Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord of human rights news. The full list of links can be found 
The current Government often complains about a “
Last week the UN Human Rights Commissioner published the draft report of the second 
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found 
Last Tuesday saw the latest episode in the prisoner voting legal saga with t
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