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Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
This week saw some commentary on Lord Sumption’s latest speech, which may indicate further advances into the domain of the government by the judges, and on secret justice and vicarious liability for Catholic priests. There have also been two important new decisions on child tax credit for separated parents and when costs will be awarded in settled judicial reviews under the Housing Act.
UKHRB Seminar Podcasts Available
The podcasts and full presentations by 1 Crown Office Row barristers Shaheen Rahman, Adam Wagner and Matthew Hill for UKHRB’s million-hit seminar are now available. The major topics: the Brighton Declaration, Article 8 and when States are complicit in torture. Check them out here if you missed the seminar.
The recent standoff between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.
Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.
Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance on judicial activism, particularly in the foreign policy sphere. I don’t agree. In his FA Mann Lecture last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light. Continue reading →
The Grand Chamber of the European Court of Human Rights is to deliver its latest, hotly anticipated, decision on prisoner votes next Tuesday 22 May. The case is Scoppola v. Italy (n° 3). The Court’s press release is here.
The UK intervened in the case, with the Attorney General Dominic Grieve QC himself travelling to Strasbourg to explain the UK’s views (including, classily, some submissions in French). As a result, the UK was granted an extension of time to comply with the decision in the original prisoner votes case, Hirst No. 2 and the more recent Greens and MT. The UK will therefore have 6 months from 22 May 2012 to introduce a Bill to Parliament (see this correspondence between the UK and the Court) to make the UK voting system compliant with the European Convention on Human Rights. Which is to say, it will have until 22 November 2012. Or is it 23 November?
South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment
South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.
South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law (the ICC Act) the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.
Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and Slobodan Milošević.
As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe –
One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.
Now the tables are turning, and this universal jurisdiction is not being universally welcomed.
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
This week saw the Queen’s Speech set out a number of legislative reforms, the veto of the release of the NHS risk register and the latest instalment in the Abu Qatada saga after the European Court of Human Rights declared his appeal was within time but nonetheless declined to hear it.
The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.
Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.
According to the Human Genetics Commission (HGC)
The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011) Continue reading →
Remember the far right? They are back. The ultra-nationalist Golden Dawn party has just won 7% in the Greek elections. Although it rejects “neo-Nazi” labels, its symbolism and style clearly channel fascist parties of the past. It has a Swastika-like logo and inflammatory anti-immigration policies. And for those who thought ultra-nationalism was confined to the history books, this YouTube video of leader Nikolaos Michaloliakos‘s victory speech will be particularly unsettling. To members of the audience who stayed after a black-shirted thug screamed at them to stand up for the leader’s entrance, Mr Michaloliakos made the ominous promise that “a “new golden dawn of Hellenism is rising” and for those “who betray this homeland the time has come to fear”.
The recent successes of far right parties in Europe, which have benefited from recession protest votes and anti-immigration populism, is indeed something to fear. But it also presents an opportunity to reflect on the importance of international human rights standards.
In the ongoing debate over the role of a European system of human rights law, lip service is often paid to the origins of the European Convention on Human Rights (ECHR) in post-war Europe. The rise of Fascism had killed tens of millions. The Nuremberg trials, an early experiment for international justice, had been a success. A Europe-wide system of rights protection seemed sensible. It still does.
Calver, R (on the application of) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) – Read judgment
The decision to censure a Welsh councillor for comments on his blog was a disproportionate interference with his right to freedom of expression, the High Court has ruled. This right requires a broad interpretation of what counts as “political speech” – even when the speech is sarcastic and mocking.
Lewis Malcolm Calver is a councillor on the Manorbier Community Council and Pembrokeshire County Council and the owner/writer of the at www.manorbier.com blog. These proceedings arose when Mr Calver was censured by the Standards Committee for Pembrokeshire County Council for comments or articles on his blog, which criticised the running of Manorbier Council.
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
In the news
This week, the Foreign and Commonwealth Office published its Report on Democracy and Human Rights and the Legal Aid, Sentencing and Punishment of Offenders Act was enacted. The Leveson Inquiry continues to roll on, and we have a fresh round of commentary over freedom of speech, and over the democratic legitimacy of judicial decisions on human rights.
R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 – Read judgment
Whether expert evidence relied upon by an asylum seeker amounted to “independent evidence” of torture was the key issue before the Court of Appeal in this case . The issue arose in the context of AM’s claim against the Home Office for wrongful imprisonment contrary to the UK Border Agency’s Enforcement Instructions and Guidance. The Guidance, which contains the policy of the Agency on detentions (amongst other things), says that where there is “independent evidence” that a person has been tortured, that person is suitable for detention only in “very exceptional circumstances”.
AM, an Angolan national, was detained pending removal following an unsuccessful appeal from the refusal of her asylum claim, the Asylum and Immigration Tribunal having found her to have “no credibility whatsoever” and rejected her evidence that she had been raped and tortured. She later launched a fresh asylum claim on the basis of new evidence, in the form of an expert report by a wound and scar specialist, Ms Kralj, which linked the various scars on her body to torture. The claim was refused again but AM won her appeal. The Tribunal this time found that she had been raped and tortured as she had claimed, causing the scars on her body.
The Foreign and Commonwealth Office has launched the Human Rights and Democracy- The 2011 Foreign & Commonwealth Office Report, which aims to provide “a comprehensive look at the human rights work of the Foreign & Commonwealth Office (FCO) around the world in 2011“. The report makes for essential reading for anyone with an interest in human rights at the global level.
The report contains a section devoted to the Arab Spring, which it describes as being “about citizens demanding their legitimate human rights and dignity” and having “no single cause“. The report also comments on the role of human rights protection in safeguarding Britain’s national security and promoting Britain’s prosperity.
The Brighton Declaration is the latest Declaration (see previously the Interlaken and Izmir Declarations) on the future (and reform) of the European Court of Human Rights made on behalf of the 47 member States to the Council of Europe, the parent organisation for the ECHR. Brighton was the venue, the United Kingdom having taken up the six month Chairmanship of the Committee of Ministers of the Council of Europe late last year.
The workload problem
So what was agreed? A nine page, highly influential Declaration, building on Interlaken and Izmir, which is primarily concerned with trying to make the Court system sustainable, since it is overwhelmed by the number of applications reaching it. Over 150,000 applications are currently pending before the Court.
In its short two-year life, the UK Human Rights Blog has forged a prominent role at the forefront of comment and opinion on all aspects of Human Rights law, and as I blogged recently, we have now surpassed 1,000,000 hits.
To celebrate this success we are holding a seminar on the evening of Wednesday 25 April 2012. I will be analysing the impact of the Brighton Conference on the future of the European Court of Human Rights and there will be presentations from other 1 Crown Office Row barristers providing an update on Immigration Law and assessing whether the Strasbourg Courts have gone too far in relation to Article 8.
CPD has been applied for and debate, drinks and snacks will of course follow.
There are still a few places remaining to attend this event. If you are currently practising within the field of human rights law and would like to attend please contact Charlotte Barrow, Marketing Executive at 1 Crown Office Row on charlotte.barrow@1cor.com stating your name and organisation. Places will be allocated on a first-come-first-served basis.
Stübing v Germany (no. 43547/08), 12 April 2012 – Read judgment
The European Court of Human Rights (fifth section) has ruled unanimously that Germany did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life) by convicting Patrick Stübing of incest
Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:
Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other. So what do you think about this? Was it wrong for them to have sex?
Most people answered with a resounding yes, supporting their “yuck” response with reasons. Yet, Professor Haidt noticed that many respondents ignored elements of the story. Continue reading →
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
In the news
It’s been an interesting week for freedom of expression issues, and its Article 10 ECHR counterpart, freedom of information, with judgments from the Court of Appeal and the High Court. The Independent Reviewer of Terrorism Legislation has also produced his first (and last) report on the operation of Control Orders. In other news, the NGO community commented on the UK’s Draft Brighton Declaration on reform of the European Court of Human Rights, the closed-material procedures received a rare show of support and the Government issued a consultation on same-sex marriage.
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Welcome back to the UK Human Rights Roundup, your weekly bulletin 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 Grand Chamber of the European Court of Human Rights is to deliver its latest, hotly anticipated, decision on prisoner votes next Tuesday 22 May. The case is Scoppola v. Italy (n° 3). The Court’s press release is 
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
Remember the far right? They are back. The ultra-nationalist 
Calver, R (on the application of) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) – 
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 – 
The Foreign and Commonwealth Office has launched the 
The 
In its short two-year life, the UK Human Rights Blog has forged a prominent role at the forefront of comment and opinion on all aspects of Human Rights law, and 
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
This blog is run by
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