The UK Government’s legislative programme for the coming year was announced this week.  The full text of the Queen’s speech is available via the Guardian website, and the Guardian also provides a breakdown of the Bills.  There are several key constitutional reforms included covering the electoral registration system and the highly publicised proposals for reform of the House of Lords.

Also announced was a Justice and Security Bill.  This will put in place measures to allow closed material to be used as evidence in the civil courts, where disclosure of the material could damage the public interest.  These measures extend the system currently used by the Special Immigration Appeals Commission (SIAC), where the Secretary of State can decide to rely on material, which for national security of public interest reasons cannot be disclosed to the appellant.  A Special Advocate is appointed to represent the interests of the appellant, without being able to discuss the material with the appellant.   This will protect the security services from publicly revealing details of their actions following allegations that they knew of the torture of UK residents and citizens detained by the CIA.  The Justice Secretary has said that these measures are required to reassure the USA in particular that intelligence they share with the UK will not be revealed in UK court procedures.  However, relying on evidence which cannot be tested raises concerns about the fairness of such trials and the possibilities for miscarriages of justice.

A Communications Data Bill was also announced.  This proposes to require communications service providers to collect and store information about their customers’ email, social media, text and general internet use, including those providers based outside the UK such as Facebook and Google.  The Government, the police and the security services can then seek access to this data.   This proposal raises concerns about the protection of the right to a private life under Article 8 ECHR.  It has been named as a “snoopers charter” by Liberty.   Liberty also highlight that the Bill comes despite the 2010 Coalition Agreement having pledged to “end the storage of internet and email records without good reason”.   Deputy Prime Minister, Nick Clegg, has stated that the Bill will not be “rammed through Parliament” and that the “strongest possible safeguards” will accompany it.

Children’s Rights

The Scottish Government has published its response to the consultation on the Rights of Children and Young People Bill.  The consultation closed on 1 December 2011, and responses were published on 1 February 2012.  The Scottish Government’s response concludes that “Scottish Government feels that it would be better to secure and reinforce the delivery of children’s rights as part of a single integrated Children and Young People Bill that will also include measures to improve Children’s Services rather than in separate legislation. It is intended to bring forward an integrated Children and Young People Bill in 2013”.  This Bill will be subject to a public consultation to be launched this summer, and meantime the Scottish Government has stated that it “will be setting out plans to take forward actions to deliver children’s rights in areas including…Embedding the UNCRC in policy design and delivery….[and] Undertaking a duty of awareness-raising.”

The Scottish Government also this week published “Do the Right Thing – a progress report on the Scottish Government’s response to the 2008 concluding observations from the UN Committee on the Rights of the Child”.  This report sets out the Scottish Government’s response to Together Scotland’s 2011 ‘State of Children’s Rights’ report and the UK Children’s Commissioners’ mid-term report on implementation of the UN Convention on the Rights of the Child (UNCRC), in addition to covering the Scottish Government’s policy intentions on children’s rights.

Abu Qatada

The long running saga has moved another step towards resolution as the European Court of Human Rights agreed that Mr Qatada’s appeal application was submitted in time, but nonetheless refused it.  This brings his deportation to Jordon one step closer.

The BBC reported the response to the news, with the Home Secretary stating “”His case will now go through the British courts, and in the meantime, because of the action taken by the government, Qatada remains behind bars.”   Mr Qatada’s solicitors, however, are quoted as stating that “The political situation in Jordan has worsened in the three and a half months that have followed [the European Court judgement]. Reports of the torture of civilians in secret sites have increased. The military courts are continuing just as before; the instability of the regime is greater.”   It thus seems that whatever the Home Secretary’s next move is, the legal debate on this issue is not yet over.

Human Rights and the Victims of Terrorism

Ben Emmerson QC, the favourite to replace Sir Nicolas Bratza as the UK judge in the European Court of Human Rights, features in an article in The Telegraph discussing his role as UN Special Rapporteur on Counter-Terrorism and Human Rights.  Mr Emmerson will propose to the UN a new convention on the human rights of victims of terrorism.  This will, he hopes, dispel “the impression that human rights law is all about extending the sort of protection to terrorists that they do not accord to those they attack, murder and maim.”  The draft convention proposes that countries must offer compensation to victims of terrorism on their territory for human rights violations.  It also seeks to prohibit insurance companies from including in life insurance policies an exclusion clause for death or injury as a result of terrorism.  Mr Emmerson stated, “Too many families whose loved ones have been killed or seriously injured have tried to claim under policies only to be told there is an exclusion clause in small print. It adds insult to injury.”

Welcome back to our weekly human rights round up after a short hiatus last week.

Immigration and Asylum

Immigration and Asylum remain topical with further press coverage on the deportation of Abu Qatada. This week will see 5 judges of the ECtHR meet to decide whether Abu Qatada’s appeal was lodged in time and should therefore be heard by the Grand Chamber. Should the appeal be allowed the deportation of Mr. Qatada will be further delayed. We will update you next week on their decision.

The Home Secretary, Theresa May, has also faced criticism over the forced deportation of a Turkish national this March contrary to a court order preventing such action. A second order has since been issued by Mr. Justice Singh ordering the Home Secretary to return the man to the UK to have his asylum claim heard. May has sought to have this order overturned but has been unsuccessful.

The courts have also dealt with the matter: in R (on the application of M) v Secretary of State for the Home Department, the High Court of England and Wales ruled that the detention of an Iraqi citizen for more than 2 years was unlawful because: “removal was not going to be possible within a reasonable time”. The appellant relied on the third principle as set out in the case of R v Governor of Durham Prison ex p Hardial Singh which stated that “If before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to deport the detainee within a reasonable period, he should not seek to exercise the power of detention.”

In Peart v Secretary of State for the Home Department the Court of Appeal order that the applications appeal be retried by the Upper Tribunal (Immigration and Asylum Chamber) owing to a failure of the judge to have regard to important factors such as “the age at which he arrived in this country, the length of his stay and the strength of his social, cultural and family ties with this country”. The applicant is a Jamaican national who came to the UK in 1996 at the age of 11 to join his mother. He has lived in the UK for 14 years and had his secondary education here. He also has a son who is a UK national. His deportation was ordered following his conviction of possession with intent to supply of a class A drug.

In R (on the application of Razzoqi) v Secretary of State for the Home Department the High Court of England and Wales upheld the claimant’s appeal of a deportation order on the grounds that fresh evidence had not been permitted to be heard as a fresh claim. The Court held that there was: “an irrational approach to the Claimant’s evidence in the light of previous findings on credibility” and that new evidence provided by the claimant dealt with earlier concerns as well as raising new issues.

In Scotland the Outer House of the Court of Session heard the Petition for Judicial Review of two deportation orders made in 2011 by the Home Secretary by a Pakistani national. As in Razzogi the petitioner had made further submissions following an initial rejection of his asylum claim. The Court of Session refused the petition finding that the Home Secretary’s decision was “rational and satisfied the requirement of anxious scrutiny”.

The aftermath of Cadder

Also before the Scottish Courts was the case of Michael Martin Hodgson v. HMA. The appellant, who had been convicted of rape, appealed the conviction to the High Court of Justiciary on the grounds that under Cadder v HMA evidence of the appellants police interview following detention should not have been lead at his trial. The High Court had already agreed that this evidence was not admissible. It therefore fell to the Court to decide whether there was a real possibility of a different verdict had the evidence of the police interview not been heard in court.

The High Court considered whether a voluntary statement made by the appellant after caution but before questioning could be admitted to evidence. The appellant’s counsel conceded that if the statements could be shown to be truly voluntary they would be out with the scope of Cadder. The Court held that they were: “His remarks were made instantaneously and, in our opinion, spontaneously and truly voluntarily. No question was posed to which the remarks could be seen to be a response.” The admittance of these remarks along with other admissible evidence was considered enough to warrant conviction and the appeal was dismissed.

Europe

In M.S v UK the European Court of Human Rights held that the detention of a mentally ill man in police custody without access to appropriate psychiatric treatment amounted to degrading treatment under article 3.

There has been mixed reaction to the decision over the interpretation of article 3: with criticism by Rosalind English about the scope of article 3 established by the court and support from Martha Spurrier.

The Court additionally found that there had been no violation of Article 13, noting that; “compliance with Article 13 does not depend on the certainty of a favourable outcome for an applicant”.

A report on the Supervision of the execution of judgements and decision of the European Court of Human Rights was published by the Council of Europe and provides analysis of the ECtHR’s judgements and decisions. It shows an increase in the number of cases closed by final resolution and a decrease in the number of new cases for execution supervision. However the number of cases which have not been executed for over five years has grown to 48%. The report notes that most of these cases concern “important structural problems” but expresses it’s concern over this fact and states that they “absorb the limited resources available to the Court to deal with other fundamental problems…such as the right to life and freedom from torture”.  Following the Brighton Declaration this report further reflects the need for reform of the ECtHR to ease the Court’s caseload.

International Human Rights

Charles Taylor, former president of Liberia, has been convicted by the Special Court for Sierra Leone of aiding and abetting war crimes during the Sierra Leone Civil War. The Special Court for Sierra Leone was jointly established in 2002 by the government of Sierra Leone and the United Nations to “try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.” Poverty Matters blog have praised the decision as part of international law’s reach to change the trend of impunity. However much was of the fact that the conviction of Charles Taylor came from a court in the Hague and calls for African countries to build “strong institutions to deal with human rights violations” themselves. It should be noted however that the SCSL has it’s main seat in Freetown, SL, and that the decision to move the former Liberian presidents trial to the Netherlands reflected concerns over regional security should the case be heard in Sierra Leone. The court has Heard that Mr. Taylor intents to appeal the decision.

The Foreign Commonwealth Office published it’s report: Human Rights and Democracy, which provides an overview of the FCO’s work on human rights internationally. The report introduced a section devoted to the “Arab Spring” as well as case studies to “compliment” the analysis of “countries for concern”. The report lists 28 countries of concern this year.

Comment has been passed over the disparity between the detailed analysis of foreign countries human rights records and the UK government’s disregard for those same rights.

In Other News

The Guardian has reported that the Catholic Education Service, which acts for Catholic Bishops in England and Wales, contacted 385 secondary schools asking teachers to draw pupils’ attention to a petition against Gay Marriage. As noted in the March 20^th SHRLG round up the government have started the consultation process to legalise same sex marriage, which will allow gay couples to marry in civil ceremonies but will not affect the right of religious institutions to refuse to marry same sex couples.

The High Court of England and Wales has upheld the decision to prevent demonstrators from sleeping near the Houses of Parliament.

There has been continued discussion over the Brighton Declaration and a short overview has been published in this month’s edition of the Law Society of Scotland Journal.

Brighton Declaration

The Committee of Ministers of the Council of Europe met this week in Brighton to discuss the UK’s proposals for reforming the Court.  In his opening speech to the conference Justice Minister, Ken Clarke, commended to the delegates the draft  declaration, stating that:

“it makes clear the responsibility of national governments to implement the Convention effectively, and the judgments of the Court;

it helps clarify the relationship between the Court and national authorities, based on the key principle of subsidiarity;

it gives the Court tools to manage its workload back to sensible proportions;

it helps ensure that the Court and its judgments of the highest possible quality;

and it emphasises that we have to be constantly aware of our responsibility to ensure that the Convention system is operating effectively.”

The agreed Brighton Declaration is now available of the Council of Europe website.

Speaking at the conference President of the Court, Sir Nicolas Bratza, welcomed the fact that the UK’s previous proposals for new admissibility criteria had not been included.  In respect of the principle of subsidiarity, which was at the heart of the UK proposals he noted that “the application of the principle is contingent on proper Convention implementation at domestic level and can never totally exclude review by the Court. It cannot in any circumstances confer what one might call blanket immunity.”  Sir Nicolas also noted that the margin of appreciate is a valuable, if complex, tool of interpretation of the Convention, and is a concept which is not easily defined, nor suited to being legislated for.   The full text of this speech is available here.

There has been a great deal of press coverage of the conference.   The BBC news website provided a Q&A on reforming the Court.   Jean-Claude Mignon, President of the Parliamentary Assembly of the Council of Europe wrote in defence of the Convention in The Guardian.  He recognised the criticism faced by the Court and the Convention and the problems currently faced by the Court, but summed up by stating that “The European court of human rights has been more successful than Churchill could ever have imagined, setting the standard for human rights protection not just in Europe but across the world. It has been a catalyst for positive change in many new democracies, contributing to long-term “deep security” across the whole continent, while occasionally nudging even advanced democracies in the right direction. Its civilising influence is deeply precious. Let’s fix it while we still can.”

Amnesty International stated that “Instead of tackling head on the crucial need to address the repetitive violations of the Convention and the non-execution of the Court’s judgments, the Brighton Declaration instead shows member states telling the Court how it should interpret the Convention.“

Liberty noted the emphasis placed on ensuring enforcement of the Convention at the national level, stating that the “Declaration will rightly recognise the value of national responsibility for the Convention and in the UK our Human Rights Act ensures precisely that….It’s just a shame that politicians seem happy to talk up our strong implementation at the Council of Europe, yet so keen to try and scrap the HRA here at home.”

European Group of National Human Rights Institutions, currently Chaired by the Scottish Human Rights Commission, made a statement to the Conference and stressed “that the right of individual petition and the independence of the Court must remain the cornerstones of the Convention system.”

Equalities and Human Rights Commission Report

At the Brighton Conference the Equalities and Human Rights Commission published a report titled The UK and the European Court of Human Rights.  This report considers the nearly 12,000 applications to the Court against the UK between 1999 and 2010, and shows that only a tiny proportion are declared admissible.  Furthermore, only 1.8 per cent (215) resulted in a judgment against the UK.  The latest figures for 2011 show a rate of defeat of just 0.5 per cent, or one in 200. John Wadham, General Counsel, Equality and Human Rights Commission stated the research “shows that 98 per cent of rulings are in Britain’s favour rather than against. And even then, our governments and courts have the flexibility to interpret rulings rather than automatically be bound by them.”

 Redressing the Democratic Deficit in Human Rights conference

 The UK Human Rights Blog has covered this conference which was timed to coincide with the Brighton Conference.  It considered the results of research carried out by Murray Hunt, Legal Advisor to the Joint Committee on Human Rights and visiting Professor in Human Rights law at the University of Oxford, Dr. Paul Yowell, lecturer in law at New College, University of Oxford and Hayley Hooper, lecturer in law at Trinity College, University of Oxford.  This research and the conference aimed to discuss how to redress the democratic deficit in human rights by identifying practical ways in which parliaments can play a more active role in the protection and realisation of human rights; and considering how courts, in turn, could respond to such an enhanced role for parliaments.

 Also in the news this week:

Strathclyde Police Authority (SPA) report of use of tasers

The Scotsman reported on the SPA preliminary report on a pilot on the use of tasers published this week.  The report found that to allow non-firearms trained officers to use tasers could be in breach of the European Convention on Human Rights.  This conclusions follows the SPA receiving a legal opinion from Simon di Rollo QC. Notwithstanding these concerns it also gives a cautious welcome to the wider use of tasers, across the country.

Director of Amnesty International Scotland, Shabnum Mustapha, has commented in the Scotsman on this report.  Amnesty have been firm opponents of the pilot.  She states that “Amnesty does not object to the use of tasers in policing per se, but if it is to be used, it should only be used in a limited set of circumstances by trained officers where there is a serious risk to life or the threat of very serious injury”.

Forced Marriage

Nicola Sturgeon has revealed this week that the first protection order under the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 has been issued.   It is an offence to breach an order under the Act which protects a person from being forced into a marriage, or from attempts to force them into a marriage, and persons who are in a forced marriage.

Doogan v Greater Glasgow and Clyde Health Board [2012] CSOH 32

The Scotsman has reported that the two midwives at the heart of this decision (covered in the 11 March edition of the Round-Up) have now appealed.  A preliminary hearing is expected to be held on 27 July 2012.

Abu Quatada

The Home Secretary made a high profile bid to deport Mr Quatada to Jordon on Tuesday, having secured agreement with Jordon that any trial he would face on his return would not breach his right to a fair trial.  However, Mr Quatada made a last minute appeal to the European Court of Human Rights (ECtHR), leading to debate as to whether the Home Secretary miscalculated the deadline for Mr Quatada’s right to appeal ending.   Coverage of the scrutiny Ms May faced in Parliament on Tuesday is available on the BBC news website.   As there will now be a delay before Mr Quatada can be deported in order for the ECtHR to determine whether to hear the case, there is a chance that Mr Quatada will be released on bail again.

Rendition

The UK Government has been under increased scrutiny this week to disclose whether it had any role in the rendition of terror suspects.  The Guardian has reported that the Information Tribunal  “ruled there was “a very strong public interest in transparency and accountability” over whether ministers actually applied their stated policy of opposing such practices.”

Meanwhile, former Foreign Secretary, Jack Straw, has come under pressure due to allegations of his involvement in the rendition of Abdel Hakim Belhadj, a Libyan Military commander.  He alleges that he was taken from Thailand to Libya via Diego Garcia, which is controlled by the UK. The BBC reported that “Mr Belhadj claims that he and his wife were tortured during the rendition process and in Libya, where he was subsequently imprisoned. “

Court proceedings have already been raised against the UK Government, the security forces and a senior MI6 officer in relation to these allegations.  Court papers were served on Mr Straw this week following an article in the Sunday Times quoting sources alleging that Mr Straw had personally authorized the rendition.   Mr Beladj’s solicitor speaking on Radio 4’s Today programme stated that “the real issue was not the amount of compensation but a public acknowledgement and an admission from Mr Straw and those involved about their role in the rendition.”  A police investigation is ongoing.  Mr Straw has neither confirmed nor denied the allegations in light of this.

Reprieve have published the letter of claim to Jack Straw from Mr Beladj’s solicitors on their website.

]]> http://www.shrlg.org.uk/2012/04/22/human-rights-round-up-13/feed/ 0 http://www.shrlg.org.uk/2012/04/16/human-rights-round-up-16-april-2012/ http://www.shrlg.org.uk/2012/04/16/human-rights-round-up-16-april-2012/#comments Mon, 16 Apr 2012 18:20:09 +0000 davepaton http://www.shrlg.org.uk/?p=2600 HUMAN RIGHTS ROUND UP

16 APRIL 2012

Abu Hamza

 The headlines were dominated this week by the European Court of Human Rights’ ruling that it would not be a breach of the Convention to extradite radical cleric Abu Hamza to the United States. In Babar Ahmad and Others v United Kingdom the court rejected the claim by Hamza and four other suspects that to send them to face trial inUnited States for terrorist related offences, would amount to a violation of their right not to be subjected to torture, inhuman or degrading treatment. It had been argued that both the “super max” prisons that they would be held in and the long sentences that they would receive if convicted, amounted to a violation of Article 3.

The court, refusing to rule that any ill-treatment on the part of the receiving state, would amount to a violation of Article 3, stated that “treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case.” The court went on to dismiss allegations that the conditions in the “super max” prisons violated Article 3, going as far as to state that “the range of activities and services provided goes beyond what is provided in many prisons in Europe”.

With respect to the length of the sentences that could be imposed the judges stated that in general “matters of appropriate sentencing largely fall outside the scope of the Convention” although they went on to state that “a grossly disproportionate sentence could amount to ill-treatment…in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (1) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (2) that the sentence is irreducible de facto and de iure” The court concluded that given the seriousness of the charges the suspects faced, there was no evidence that the potential sentences would be grossly disproportionate.

The judgement attracted wide attention in the press and in legal circles. For example, legal commentator Joshua Rozenberg  is of the view that the judgement was “the right call” adding that “despite what some critics seem to think, the Strasbourg judges do live in the real world.” The PHD Studies in Human Rights Blog states that the “judgement sends a fearful signal to extremists in national legislatures throughout Europe, who may take it as a blessing for harsher sentencing policies.” However, the lawyers acting for the applicants released a statement hitting out at the decision and questioning why the suspects were being tried in the United States and not in theUnited Kingdom

 Richard Norton-Taylor writing in the Guardian argues the judgement should be a “wake up” call for the legal system and the Independent declares it “a ruling that confounds Strasbourg’s critics”. An overview of the reaction in the United States press can be found here and an in depth review of the decision can be found at the UK Human Rights Blog.

 Stübing v. Germany

Another significant ruling from Strasbourg this week was the decision in Stübing v. Germany where it was held that a criminal conviction for incest, followed by a custodial sentence, did not violate the right to respect for private and family life as enshrined by Article 8. The applicant was sent to prison by German authorities after carrying on a sexual relationship with his sister, whom he met as an adult. Stubling was separated from his biological family at three years of age and did not reconnect with his family until 2000. At this point he learned of his sister and went onto father four children with her from this date until 2005. The court ruled that there was on consensus in Europe on whether or not consensual sex between adult siblings constituted a criminal offence and therefore the German authorities were afforded a wide margin of appreciation, which they had not overstepped in this case. Daniel Sokol provides an analysis of the decision.

 Brighton Declaration

With next week’s upcoming Brighton Conference, NGOs have voiced concern at the proposed reform of the European Court of Human Rights which is set to dominate the agenda. A Joint statement published by the BIHR and leading NGOs urges “diplomatic leaders at Brighton to refrain from endorsing measures which would undermine the universal protection of human rights across the 47 Member States and to instead focus on the importance of effective national implementation of the Convention.” BIHR director Steven Bowen added that “Ultimately the UK’s Draft Declaration contains some rather unpleasant proposals which risk jeopardising the role of the European Court of Human Rights in safeguarding human rights protections not only in the UK but across the 47 Council of Europe Member States.”

Open Society Foundation has also raised concerns at the reform proposals at Brighton because of the fact that the only attendees will be “high level” government officials to the exclusion of voices from civil society organisations. The Committee to Protect Journalists blog has separately jumped to the defence of the system stating that the “European Court has firmly and consistently supported freedom of expression and freedom of the press. It has also vigorously taken up cases of impunity in attacks against journalists…” Whilst the Guardian calls on readers to provide a broader view of what the Strasbourg court does in the face of tabloid criticism. The programme for the conference is now available online albeit without offering a great insight on what is to be expected.

Defence Statement Requirement Does Not Breach Article 6

Closer to home, the Court of Appeal, in Barclay & Others v HMA have ruled that the requirement to lodge a defence statement prior to solemn trials did not breach the accused human rights. Section 70A of the Criminal Procedure (Scotland) Act 1995 requires that a defence statement is lodged at least 14 days before the first preliminary diet and that no later than 7 days before the trial it is confirmed whether the statement has materially changed or not. It was argued that this contravened the right to silence and constituted a violation of the right to a fair trial under Article 6. The argument was dismissed as lacking substance in that s.70 did not place an obligation on the Defender to make a positive and substantial defence but that the defender may simply deny the charge in the statement and put the Crown to proof.

The petitioner is a national of Yemen who entered the UK in October 2009. His claim for asylum was rejected and his right to appeal exhausted in March 2010. It was argued that the respondent erred in holding that he did not qualify for ‘subsidiary protection’ due to the outbreak of armed conflict in Yemen in 2011.

The claim was made under para. 353 of the Immigration Rules, based on Art. 2(e) of Council Directive 2004/83/EC. It provides that a person eligible for subsidiary protection is a third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown that, if returned to their country of origin/former habitual residence, they would face a real risk of suffering serious harm as defined in Art. 15, and to whom Art. 17 (1) and (2) does not apply, and is unable, or owing to such risk, unwilling to avail of the protection of that country.

Counsel for the petitioner submitted that there was fresh evidence to show qualification for subsidiary protection because of the outbreak of internal conflict in Yemen in early 2011. The application was refused under the terms of para. 353, with submission that this was incorrectly interpreted by the respondent.

Counsel for the respondent submitted that the terms of Art 2(e) of the Directive required to be interpreted under reference to Art. 15 and that the relevant law had been applied to the facts. It was argued that the information supplied showed severe violence, but was not to be regarded as indiscriminate in the sense envisaged by the Directive.

Amongst authorities, reference was made by both sides to Elgafaji v Staatsecretaris van Justite (2009)1 WLR 2100, and QD (Iraq) v Sec. of State for the Home Dept. (2011) 1 WLR 689. In QD at 19, Sedley LJ criticised the poor drafting which blights the interpretation of Art. 15 (c), and even more so when married with Art. 2 (e).

Lady Clark’s Opinion states that the respondent fell into error in attempting to apply the case law cited, particularly the guidance from Elgafaji, where it was not recognised that the case assists with interpretation of Art 15c in relation only to the first of the criteria set out there, namely ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence’, but not to ‘situations of international or internal armed conflict’.

In Bourgas & Others v Sec. of State for Justice [2012] EWCA CIV 376, prisoners argued the right to associate with fellow inmates and that this right was of the kind protected by Article 6 ECHR. Maurice K LJ found that there is nothing in Strasbourg authority which requires Art. 6 compliance at the stage of an administrative decision to segregate, or to continue segregation, nor is there anything under domestic authority requiring it.

Strasbourg case law doesn’t establish an unequivocal right of association with other prisoners as a matter of Convention law. The question was whether there could be an implied right – the judge’s preference was to see association as a “normal privilege”, not a right. This doesn’t mean it can be withdrawn at will, but that withdrawal is subject to Judicial Review. Facts, not conceptual circumstances, prevail.

Arguments for the prisoners stated that if there is no civil right, Articles 3 and 8 are engaged by decisions to suspend interaction and therefore the decision-making process had to be Article 6 compliant. The judge considered that Art. 8 may be engaged in some of the cases, but rejected engagement of Art. 3 in all. This didn’t mean the initial decision-making process had to be Art. 6 compliant – it was an administrative decision-making process which engaged Convention rights, not a decision about whether these rights had been violated.

Further consideration was given by the court to whether, hypothetically, lack of Art. 6 compliance in the initial decision was cured by the availability of Judicial Review and considered that this would be the case.

Cairns v Modi [2012] EWHC 756 – this is the first social networking libel case to reach the law reports in England & Wales. The claimant is a famous New Zealand cricketer and the defendant, once chairman of the Indian Premier Cricket League, who posted a line on his Twitter account implying that the claimant had cheated by fixing matches. The justification defence fell apart and the claimant was awarded £75,000, with another £15K for aggravated damages.

It was held that “Mr Modi has singularly failed to provide any reliable evidence that Mr Cairns was involved in match fixing or spot fixing, or even that there were strong grounds for suspicion that he was” [118]. Damages of £90,000 were awarded to Mr Cairns, despite the fact that the tweet in question had only been published to 65 followers in England and Wales. The judge indicated that his starting point was £75,000 but took into account the attack on the claimant at the trial and increased damages by 20%. Permission to appeal on liability was refused but was granted on the issue of the quantum of damages.

The Workfare Programme- Here’s an upcoming matter to watch for, as highlighted by Phil Shiner, solicitor at Public Interest Lawyers, in The Guardian (30/03/12) – ‘High court should seize chance to curb government’s workfare programme – it may not be slave labour, but forcing people to work for free could breach human rights laws’. (Mr Shiner delivered a talk in the SHRLG’s ‘Human Rights And’ series in 2010, entitled ‘Human Rights And Iraq’.)

In January 2012, Cait Reilly commenced judicial review proceedings which represent the positions of quarter of a million unemployed people. The action challenges the government’s plan to have those who are unemployed to work for nothing, or risk losing their benefits. The initiative is called ‘Get Britain Working’ and will be reviewed over 1.5 days in June.

The Workfare programme has been implemented in the US, Canada and Australia. Before its implementation in the UK, the Department of Work & Pensions commissioned independent research examining how well it worked abroad. The report concluded with little evidence that Workfare increases likelihood of finding work and found it can even reduce employment chances by limiting time available for job searching and failing to provide skills valued by employers.

Yet, the coalition has adopted measures to implement it. Ms Reilly, along with a co-claimant, are objecting to the creation of the UK Workfare model without official parliamentary approval of what the schemes should involve and to whom they should apply. The key question for review is whether the work they have undertaken can be described as ‘forced or compulsory labour’ under Art. 4 of the HRA?

Success for the claimants in June would likely see the High Court exercising its power to quash the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regs. 2011.

The SHRLG will be taking a one week break from the round-up for Easter.  We would like to take this opportunity to wish all readers a happy Easter.

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