European Court of Human Rights

Reform of the European Court of Human Rights (ECtHR) has been a key topic this week following David Cameron’s speech (available in full here) to the Council of Europe’s Parliamentary Assembly on 25^th January.  The Prime Minister set out his plans for reform, stating that the Court should improve in its efficiency, dealing with the most important cases, the Court should improve the procedures for nominating judges to ensure a consistently strong shortlist from which to elect judges, and finally the principle of subsidiarity should be strengthened, giving national courts a stronger role freeing up the ECtHR “to concentrate on the worst, most flagrant human rights violations – and to challenge national courts when they clearly haven’t followed the Convention.”

The President of the ECtHR gave his thoughts on the issue of reform following the Prime Minister’s speech, and on the perception of the Court in the UK in an interview with the Guardian.

In relation to a separate issue, the Council of Europe’s Parliamentary Assembly has adopted a Resolution has urging states, namely the UK and France to not cause delay in agreeing the EU’s accession to the European Convention.   This was made possible by the Lisbon Treaty, and the two organisations have been in informal negotiations since 2010.   The Assembly state that there is now “a need for the active support of all European governments and parliaments”, and that enabling the EU to ratify the Convention “should ultimately lead to a common space for human rights protection across the continent in the interest of all people in Europe.”

The ECtHR has issued several judgments including:

Harkins and Edwards v UK (Application Nos. 00009146/07 and 00032650/07)

The Court held that there was no violation of Article 3 by the UK in accepting diplomatic assurances that the death penalty would not be applied and that the likely prison sentences would not be disproportionate by countries to which the applicants were to be extradited for murders and other crimes of violence.

Othman v UK (Application No. 8139/09)

 The applicant, otherwise know as Abu Qatada can not be deported to stand trial in Jordon, as although the diplomatic assurance given to the UK Government that the applicant will not be tortured protects his Article 3 rights, his Article 6 rights will be breached by the high probability that evidence obtained by torture would be admitted at a trial against him.

Vinter and others v UK (Application nos. 66069/09 and 3896/10)

The Court  held that due to the particularly brutal and callous nature of the murders committed by the applicants the all-life sentences given by the High Court following a fair and detailed consideration each applicant’s case were not in breach of Article 3.

Welfare Reform

In the UK Parliament the coalition suffered a defeat in the House of Lords on the controversial Welfare Reform Bill, however, on its return to the Commons on Wednesday MPs voted against the Lord’s amendments reinstating the coalitions original proposals.  The Speaker of the House of Commons on advice from his clerks has approved use of the “financial privilege” rule, which removes any further role for the Lords, and will ensure that the Bill is passed.  Meanwhile, the Scottish Parliament has established a Welfare Reform Committee to monitor the Bill’s progress and consider its implications for Scotland.

Apollo Engineering Limited (in liquidation) v James Scott Limited [2012] CSIH 4

The Inner House has stated that there is no breach of Apollo Engineering Limited’s Article 6 rights in requiring the company to be legally represented.  Apollo no longer had sufficient funds for legal representation and the company’s director and shareholder sought an order from the court that he would be allowed to represent Apollo in a Stated Case, which Apollo had raised challenging the outcome of an arbitration between Apollo and James Scott Limited.

Justice delayed is Justice denied

The Scotsman has reported that a delay of 18 months in the Court of Appeal issuing their judgment was an unreasonable delay, and breached the appellants human rights.

Occupy Movements

The Occupy Movement based outside St Paul’s Cathedral in London have been ordered to move in City of London v Samede and others 2012 WL 14662.  The Court held that it was not a breach of the protesters rights under Articles 10 and 11 of the ECHR to require them to move, as having taken into account other balancing factors such as the “extent and duration of the obstruction of the highway, and the public nuisance inherent in that obstruction…the effect of the camp on the Article 9 rights of worshippers in the cathedral…the effect on visits to the cathedral”, removing the camp was proportionate.

This comes in the same week that the Occupy Movement in Edinburgh has moved from St Andrew’s Square to the Meadows.  The protesters have moved in order to avoid legal action to evict them.

Other news

SHRLG Contributing Editor Gordon Junor’s article “Abuse Claims—Convention Rights in Recovering the Documents?” published in the Civil Practice Bulletin (Issue 101 – October 2011) is now available on the SHRLG website, with kind thanks to both author and publisher.

Introduction

As the extent to which limitation defences under s.17(2)(b) and s.19A of the Prescription and Limitation (Scotland) Act 1973 (as amended) may have become more limited and, in consequence, abuse claims are allowed to proceed to proof (see CG and MW v Glasgow City Council, 2010 CSOH 69/70 and Rep.B. 96) the importance of being able to recover any relative documentation is only increased.

Following on from that and from what remains of subsisting general guidance given from the then Lords in these respects from Somerville v Scottish Ministers, 2008 S.C. (HL) 45, issues arising, not least from the implications of arts 6, 8 and 10 of the European Convention on Human Rights and the Human Rights Act 1998, have to be dealt with. These have now been discussed and disposed of within the (anonymised) decision of Lord Stewart in LAM v A Scottish Local Authority, 2011 CSOH 113.

So far as relevant for the following generalised review, this action concerns a claim for damages for alleged culpable failure of the part of a Social Work Department to protect the pursuer from child sex abuse. In 2005 the Scottish Executive published a report of its investigation into the case. As Lord Stewart recognised, it “does not identify the individual victims: but it does give the date of each recorded concern and the age of the victim at the time” and related information is “still readily available on the internet”.

Proceedings to date

Motion for the pursuer was granted entitling the pursuer to excerpts of entries insofar as “showing or tending to show the nature and extent of the abuse suffered by the pursuer and her sisters before they came to live [in Scotland] in 1995” and “once they came to live [in Scotland] in 1995 and whilst under the care of the Social Work Department of the defenders”. The relevance of the calls in the specification to the issues raised on record, in particular the relevance of the reference to the abuse suffered by the sisters of the pursuer, was not challenged. Recovery per se was not opposed by the defenders who adopted the grounds of opposition stated by the Scottish Ministers.

Recovery was opposed by the Scottish Ministers, as havers, with the “object to ensure that the Convention rights of third parties so far as engaged are protected, in relation to, in the case of alleged abusers, the presumption of innocence and protection of reputation, and, in the case of claimed victims, in relation to sensitive personal information”. The disclosure authorised was subject to the qualification “save insofar as disclosure of those entries … would contravene the Convention rights of any person”.

As envisaged, a confidential envelope was lodged and a motion to open up the envelope was enrolled on behalf of the pursuer. That motion was granted by Lord Stewart “for the purpose simply of familiarising myself with the contents”. As a result his “provisional views” about disclosure (and intimation and the appropriate extent of redaction) were that “the whole contents are relevant and that disclosure of the whole contents is in principle necessary for the fair resolution of the pursuer’s claim (Science Research Council v Nassé [1980] A.C. 1028)”. Whether there should be intimation was not agreed and left for the court.

Convention rights

Scottish Ministers were said to have given consideration to the questions: (1) whether the art.6 ECHR rights of the alleged perpetrators were engaged; and (2) whether the art.8 ECHR rights of both alleged perpetrators and claimed victims were engaged. The view had been taken that art.6 rights were not engaged on the basis that “officials may publish information about criminal investigations and criminal charges provided that official statements do not encourage a belief in guilt or prejudge the facts” and “art.6 protection flies off once the decision not to prosecute has been made”. It was considered that disclosure of sensitive personal information can constitute an interference with the right to respect for private life contrary to art.8(1) ECHR (MS v Sweden (1999) 28 E.H.R.R. 313) and that a failure by the state to protect against reputational damage can be a violation of art.8(1) ECHR (Pfeifer v Austria (2009) 48 E.H.R.R. 8). The right to non-interference was said to be “not absolute and may be justified where and to the extent that it is necessary for legitimate aims and proportionate in terms of art.8(2) ECHR”. These propositions—and that the courts as public authorities had duty to comply with Convention obligations—were regarded as “not contentious”.

Counsel for the Scottish Ministers submitted that “intimation should be made to potentially affected parties to give those parties an opportunity to make representations about redaction and disclosure” and “[n]o person should have access to the documents prior to decisions on redaction and disclosure”. Lord Stewart recognised the “difficulty” and, in passing, that “the system can be neglectful of third party privacy rights, for example where unanonymised patient records are put in evidence in connection with lifting-injury claims by nurses and care workers”.

In support of the propositions that art.8 ECHR compliance would as a rule require third parties to have an opportunity to make representations before disclosure, reference was made to C v Chief Constable of Greater Manchester, 2011 EWCA Civ 175, and that any disclosure must be proportionate, reference was made to Clift v Slough BC, 2010 EWCA Civ 1171. It was noted there that “[a] plea of ‘administrative difficulty’ on the part of the public authority is not generally persuasive”.

Suggestion was that the court might proceed “by way of analogy with the public interest immunity procedure” (see “Somerville—Dead, but [Public Interest Immunity-Wise] Not Yet Buried”, Civ. P.B. 89) “and the procedure where professional legal privilege is invoked”. It was noted that:

“[I]t is wrong to allow parties’ advocates or ‘special advocates’ privileged access to unredacted material under conditions of confidentiality; and it is for the Court to examine the material and, balancing competing interests, to make its own assessment of the extent to which disclosure without redaction is proper” (applying Somerville v Scottish Ministers, 2008 S.C. (HL) 45 and Narden Services Ltd v Inverness Retail and Business Park Ltd, 2008 S.C. 335).

Approach of the Court

Lord Stewart accepted “that the art.8 rights of the alleged perpetrators and the claimed victims were potentially engaged” but maintained the view “that it is necessary in principle to make disclosure for a legitimate aim, namely for the fair determination of the pursuer’s claim for damages”. He further accepted “that disclosure must not be disproportionate”, which would depend “on the use to be made of the material and other measures that may be available to protect art.8 rights”, such as anonymisation, restricted disclosure, hearing witnesses behind closed doors and reporting restrictions. Somerville and Narden Services were not regarded as providing specific guidance “beyond the propositions (1) that relevant material must be disclosed to the party recovering unless, and except to the extent that, non-disclosure can be justified; and (2) that it is for the judge to decide whether and to what extent there should be non-disclosure by reading the documents and balancing the competing interests”. His “perception” was that:

“[T]he real issue in the present case is about publication beyond the doors of the Court rather than about making the information available to parties within the court room. On this understanding I would not consider it satisfactory for parties to debate, in effect, restrictions on publication without having sight of the information. That would be unreal and unequal—unequal because the havers (if they wish to participate) and the defenders already know the contents of Volumes 1 and 2 of the Findings in Fact: but the pursuer, who has the leading interest in the material, is in ignorance.”

In so far as to whether third parties must have an opportunity to make representations before disclosure of any kind, the case of C was said to support “the proposition that, as a rule, individuals have to be given an opportunity to make representations before damaging, confidential information about them, affecting more than their reputation, is disclosed by public authorities” although in MS the European Court “did not accept the submission that the applicant should have been given an opportunity to make representations before her medical records were disclosed to the social insurance service for the purpose of assessing the applicant’s claim for an industrial injury pension”.

He noted that in Mosely it had been decided that the state does not have a positive obligation to put in place a pre-notification requirement for the publication by non-state actors of information that interferes with individuals’ private lives (Mosley v United Kingdom 48009/08, 2011 E.C.H.R. 774). He took Clift to be “authority for the proposition that the requirements of proportionality as regards dissemination by public authorities may be satisfied by applying a ‘need to know’ test: some people need to know all the information including the identity of the data subject; anonymised information can meet other needs; and most people don’t need to know anything at all”.

He identified that:

“Courts have a means of complying with the negative obligation imposed by art.8(1) ECHR by anonymising judgments—to discourage if not prevent the identification of individuals whose privacy rights are at risk—and of complying with the positive obligation by restricting reporting. A general warrant for restricting reporting now lies in art.8 itself, as incorporated into United Kingdom law by the Human Rights Act 1998 (In re Guardian News and Media Ltd (SC (E)) [2010] 2 AC 697 at ss.26–32 per Lord Rodger of Earlsferry JSC giving the judgment of the Supreme Court).”

He recognised that “[m]erely anonymising judgments gives uncertain protection for privacy rights in Scotland” given the understood views of the Scottish Court Service in relation to disclosure of the names of anonymised parties to journalists on request except where children are involved and unless there is in place a specific anonymity order in terms of, for example, the Contempt of Court Act 1981 ss.4 or 11”. He noted that s.4(2) of the 1981 Act empowered the court to order postponement of reporting where there is a risk to the administration of justice; and s.11 authorised the court to prohibit publication of names and other information withheld from the public during proceedings in court but he thought “[n]either power … apt for the present predicament”.

He commented that “the life-long anonymity provisions for victims of alleged sexual offences contained in the Sexual Offences (Amendment) Act 1992, as amended, do not apply to Scotland although publication in contravention of various reporting restrictions as they apply elsewhere in the United Kingdom may be prosecuted as an offence in Scotland “ and that it seemed “unlikely that the power to prohibit publication given by Children and Young Persons (Scotland) Act 1937 s.46 can be stretched to fit the situation in this case where the claimed victims were children at the time of the alleged abuse and are now adults”.

Lord Stewart had yet to hear “from counsel whether there is a general statutory power to make prohibitory orders equivalent to the provision for England and Wales contained in the Senior Courts Act 1981 s.37; and, if not, whether the Court of Session has an inherent power at common law to make such orders against parties not involved in the proceedings. It could be argued—I have not heard submissions on the point—that the Court of Session Act 1988 s. 47 (2) gives the Court power to make orders prohibiting publication ad interim for art.8 ECHR purposes.”

The Guardian News and Media decision was noted to have given precedence to the art.10 ECHR rights of the press over the art.8 ECHR rights of individuals; although there were no submissions on this dimension he thought himself “bound to take art.10 ECHR into account in making the decisions that I have been asked to make”.

Regard also had to be had to “the art.8 privacy rights of third parties not mentioned by the havers and not represented by the defenders, such as foster parents. Applying the test suggested in C on the question “is it obvious that nothing the third parties might say could rationally or sensibly influence my mind against disclosure to the pursuer?” he concluded that:

“[N]othing could influence my mind against disclosure in principle. This is because, first, I take the view that that the pursuer has ‘a need to know’ and that in principle the documents are relevant and have to be disclosed so that there can be a fair trial of the issues and because, secondly, the pursuer already knows or has the means of knowing at least the outlines of all the concerns … as well as the identities of the alleged perpetrators and the claimed victims.”

In his view there was “no need for pre-notification”.

In relation to disclosure there were thought to be two stages involving “disclosure to the pursuer” and “disclosure of the proceedings to the world at large” for which a number of factors had “to be weighed in the balance at each stage”. At the first stage there was no dispute about concealing the identities of the alleged non-family perpetrators on the view that the art.8 ECHR rights of the non-family alleged perpetrators would be appropriately protected by anonymisation; alleged family perpetrators could also be anonymised “giving proportionate protection to those individuals without in any way disadvantaging the pursuer”; the names of foster-carers, teachers, medical practitioners, etc., could also be anonymised “for their own protection and to prevent identification of alleged perpetrators and claimed victims”. As noted “[p]art of the purpose of these redactions is to protect art.8 privacy rights in the event of inadvertent disclosure of the documents or their contents to persons who do not have a need to know”.

It was thus decided that the documents in question “be disclosed to the pursuer on the basis that, as is in any event implied, disclosure is strictly for the purposes of her action” with the result that “disclosure is restricted to the pursuer, her legal advisers, expert witnesses instructed in connection with the forthcoming proof, and witnesses to fact who may require to be precognosced in relation to the contents of the documents for the proof”. Sharing of the redacted documents with the defenders and their advisers was also authorised “in the event that a question about the redacted documents arises between parties before the documents are lodged as productions” with proviso that “[i]f the pursuer needs to disclose to other persons or needs to know the identity of anonymised individuals she can come back to court for relaxations”.

For the pursuer concerns were expressed on possible prospects that notification, at any time, to the pursuer’s family members “given that they still reside in the community where the alleged abuse took place and may be subject to embarrassment, harassment or worse” and that they may be witnesses, and that the pursuer was vulnerable and liable to pressure. As Lord Stewart saw that dimension, “[w]ithout necessarily accepting that all these concerns are relevant, they can be debated further when it comes to making decisions about disclosure of the proceedings”.

As he commented “[a] large part of the difficulty about disclosure of these proceedings arises from the fact that public authorities including the Scottish Ministers themselves have created conditions in which it is very difficult to prevent identification of the individuals involved”.

As he concluded:

“Without prejudging matters, including the matter of competency, there could be an argument for some reporting restrictions in this case. I say this on the basis of the privacy rights that are at stake and on the basis that the public interest aspect has already been substantially satisfied by the publicity given to the police operation in 2003, by the reporting of the termination of criminal proceedings in 2004 and by the coverage given to the publication of the Report in 2005.”

But, as he re-stated “[o]nly a strong case can prevail over the art.10 ECHR rights of the press and the utilitarian and constitutional arguments in favour of public justice” (in re S (A Child) (Identification: Restrictions on Publication) 2005 1 AC 593). Essentially “[t]here must be a public interest in knowing, at the very least, whether or not the defenders are liable in damages to the pursuer, and in general whether local authorities are liable in damages to victims for failures of their child protection services”.

What Lord Stewart finally decided was to correct the prior interlocutor by deleting the reference to intimation and to appoint the havers to redact the documents recovered (as discussed) with the documents once redacted to be lodged and disclosed to the pursuer. Discussions were to follow on “reporting restrictions and the question whether the third parties should be offered the opportunity to make representations about further redaction, anonymisation and reporting restrictions before the proof (scheduled for October) takes place”.

(He anonymised his Opinion ex proprio motu having regard to the advice given in Practice Note No.2 of 2007.)

Conclusions

Even assuming that limitation restrictions upon such claims can be overcome, prospective difficulties in the recovery of relative documents for any proof can be anticipated but, hopefully, dealt with in a manner which will not defeat the interests of justice for victims. The disposal of this action, to date, may be viewed as seeking to achieve that objective but may also be said to be a timely reminder that both pursuer and defenders as the parties, and others who may be concerned or affected, have human rights in such civil litigation contexts.

 23 DECEMBER 2011

 Welfare Reform Bill

On 20 December, the Scottish Human Rights Commission responded to planned UK government Welfare Reforms by writing to every member of the Scottish Parliament warning that the proposed reforms could put the human rights of Scotland’s most vulnerable at risk. The Commission warned that reforms could “result in destitution for individuals who require ongoing and meaningful support”; potentially will have a “disproportionately negative outcome on more vulnerable groups;” and that greater scrutiny of the bill is required in light of the UK’s International legal obligations. Chair of the Commission, Professor Alan Miller added that “protection for the public, especially for people with disabilities, children, carers, and older people is all the more necessary in the present economic climate.”

The SHRC’s action came ahead of a debate by MSPs on whether a Legislative Consent Memorandum to the UK Welfare Reform Bill should be entered into in Scotland. On 21 December, SNP and Labour MSPs united and took the unprecedented step of voting down Westminster Legislative consent. Health Secretary Nicola Sturgeon stated “Put simply, the Scottish government supports a welfare system that is simpler, makes work pay and lifts people out of poverty, however, this approach is being fundamentally undermined by the UK government’s deep and damaging cuts to benefits and services that will impact on some of the most vulnerable people in Scotland.” The Bill is currently in the Committee scrutiny stage in the House of Lords.

Partner Abuse

The Scottish Government has published its Crime and Justice Survey into Partner Abuse. The annual study, based on 13,000 face to face interviews with Scottish adults, found that 16% of those who had at least one partner since the age of 16 had experienced partner abuse since that age. Further, 3% of those who had a partner or were in contact with an ex-partner in the last 12 months experienced partner abuse in that period. Out of those who had been subjected to physical abuse within the past 12 months only 29% considered it a crime whilst 29% of those surveyed did not tell anyone about the most recent abuse they had suffered. Overall, the survey found that the risk of partner abuse was roughly the same when comparison to the 2009/10 findings.

Fall Out of Cadder

Another week has passed which means another judge has voiced off about the European Court of Human Rights. Lord McCluskey continuing on from the comments he made before the Justice Committee, has called for Scottish judges in the Supreme Court to grow a “backbone” and stop kowtowing to the Strasbourg system. The Cadder ruling was singled out by the retired Scottish judge, which was described as “flawed, mistaken and misconceived” and a “disaster” for Scotland.

Related to this, convicted rapist Ryan McCallum is to have his case referred to the High Court following the Scottish Criminal Cases Review Commission’s finding that his trial may have been in breach of Article 6 of the European Convention on Human Rights. The Commission stated that “in light of the decision of the Supreme Court in Cadder v HMA, and that of the European Court of Human Rights in Taxquet v Belgium, Mr McCallum may not have had a fair trial.” McCallum’s case is the first to be referred to the High Court as a result of Cadder.

Freedom of Information

Scottish Freedom of Information Commissioner, Kevin Dunion has called for wider and stronger freedom of information laws in Scotland.  Speaking at the Holyrood Freedom of Information Conference, Dunion called FOI “a success story in Scotland” but appealed to the government to extend those subject to FOI legislation to include a greater number of organisations that provide public services such as the Association of Chief Police Officers and Law Society. He also warned against the introduction of wider exemptions and increased fees for requestors. His comments come in light of a Ipsos MORI survey that found that 91% of those polled consider FOI as an important means of holding spending by public bodies to account.  

Although the government have not embraced the suggestions of the Commissioner, a draft amendment to current FOI legislation has been published for consultation. The amendments allow greater flexibility for ministers to make exceptions to the 30 year life span that normally applies to historical records and also allow the period in which a prosecution can be brought for destroying requested information to be 12 months rather than 6 months. Responses to the consultation are to be submitted by 8 March 2012.

The SHRLG will be taking a short break from the weekly round-up for the festive period but shall return in early 2012. We would like to take this opportunity to wish all readers a very Merry Christmas and a Happy New Year!

Anti Sectarian Legislation

After lengthy political wrangling the SNP have pushed through legislation, by 64-57 votes, to tackle sectarianism and other related offences at football matches. The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill’ was passed on Wednesday by the SNP, who command a majority in Parliament, despite objections from all opposition parties. Two new criminal offences will be created. The first relates to offensive or threatening behaviour likely to incite public disorder at certain football matches. The second is “Threatening Communications” which will criminalise recorded exchanges that contain threats of serious violence or threats intended to incite religious hatred. Anyone convicted under the bill faces a maximum of five years imprisonment.

Community Safety Minister Rosanna Cunningham, welcoming the Bill, stated that “the passing of these important new laws sends out a powerful message to the bigots that this behaviour will not be tolerated in a modern Scotland.” However, a joint statement from Labour, Conservatives, Liberal Democrats, Greens and Independent MSP Margo MacDonald states that whilst “Members of all political parties are determined to wipe the blight of sectarianism from Scottish society” adding that the legislation had been “railroaded through by the SNP” and that the government has “failed to make the case for the legislation both in parliament and out”.

Same Sex marriage

A number of NGOs and human rights organisations have thrown support behind government proposals to legalise same sex marriage. In September the SNP launched a consultation into whether gay and lesbian couples should be able to legally marry and not just enter into civil partnerships as the law currently stands. A “rainbow coalition” including the Equality Network, the Scottish Youth Parliament, Amnesty International, Unison, the Humanist Society of Scotland, LGBT Youth Scotland and NUS Scotland backed changing the law to grant “equal marriage” to both homosexual and heterosexual people. The Scottish Human Rights Commission‘s (SHRC) submission to the consultation also backed a change stating that “the equal right of same sex couples to marry should be guaranteed in law.” Guardian columnist, Shelagh McKinlay backing the change argued that this is “an opportunity for Scotland to lead the way, to show that it is a modern, enlightened and inclusive nation.” Campaign group, Scotland for Marriage, oppose the plans and have the support of the Church of Scotland and Catholic Church.

Reform of the European Court of Human Rights and Repeal of the Human Rights Act

The discussion on reform of the European Court of Human Rights and the future of the Human Rights shows no sign of abating. SHRC chairman Alan Miller, writing in the Guardian, argued that he does not “believe the Scottish parliament will consent to repealing the HRA and replacing with it with a UK bill of rights as it would regard this as a backward step” adding that “it seems that [the UK] no longer understands its devolved constituent nations, nor its partners abroad.” Miller echoed similar views in an article in Holyrood Magazine where he observes that this is a crucial time for human rights legislation in the UK, that there is the potential for a constitutional crisis and that “it is important in Scotland that we stand in contrast to an increasing retreat from human rights at a UK level.” Michelle Mitchell, charity director of Age UK, has also given thanks to the Human Rights Act this week for the respect and dignity it gives people.

European Commissioner for Human Rights Thomas Hammarberg has also voiced criticism at the UK governments’ increasing isolation in Europe. Speaking to the UK’s Equality and Diversity Forum, Hammarberg warned that “any weakening of the human rights protections in the Act would be noted outside the UK, and welcomed by less democratic states as tacit encouragement to weaken their own human rights protections.” However, former European Commissioner Emma Bonnino and the executive director of Open Society Justice Initiative James Goldston have called for the European Court of Human Rights to be reformed to avoid it “collapsing under the weight of more than 160,000 pending applications”.

Edinburgh Domestic Abuse Court

Public Health Minister Matheson has announced that a specialist domestic abuse court in Edinburgh is set to be piloted early next year. The court will hear offences committed after the 9^th December and will sit for the first time on 7 February 2012. This follows the previous announcement that the Dunfermline domestic abuse court is to become a permanent fixture of the Dunfermline Sheriff Court. Both will join theGlasgow domestic abuse court which has been in place since 2004.

International Human Rights Day

The 10^th December marked International Human Rights Day and the 63^rd anniversary of the UN Declaration of Human Rights. The SHRC took the opportunity to comment that whilst “at a UK level human rights has been given a toxicity due in large part to sustained media coverage of grossly misleading statements from UK Ministers” they had optimism for the year ahead because of the progress and plans they as an organisation for 2012.  Similarly, The British Institute of Human Rights marked the occasion by writing an open letter to political party leaders calling for greater leadership on human rights and expressing disappointment at the vilification the Human Rights Act has been subjected to. The letter was signed by 43 organisations including Unicef UK, Age UK, ,Citizens Advice, the National AIDS Trust and the Down’s Syndrome Association.

Other News

Other human rights articles of note making the news this week include the Strasbourg Observer’s commentary on Al Hanchi v. Bosnia and Herzegovina which marked a change in the European Court’s attitude to extraditions to Tunisia. Previously, the extradition of people associated with the foreign mujahadin constituted a risk of ill treatment but following the Arab Spring and what the Court observed as “the process of democratic transition in Tunisia” this may no longer be the norm.

Rosalind English has offered an interesting analysis of the English Court Martial Appeal Court decision of R v Michael Peter Lyons [EWCA Crim 2008] which held that Article 9 ECHR – the right to freedom of thought, conscious and religion – did not constitute grounds for a Royal Navy volunteer to ignore a lawful command on the grounds of conscientious objection.

Liberty have published a short user-friendly piece on Article 11 of the European Convention – the right to freedom of assembly and association.

And finally, Lucy Adams, chief reporter for the Herald, was this week awarded a human rights award by Amnesty International for her report into Ghanian women that are accused of witchcraft and persecuted as a result. The article, entitled “Spellbound: the stigma of witchcraft in Ghana” can be read here.

Scotland was in a state of panda-monium this week following the arrival of pandas Tian Tian and Yang Guang at Edinburgh Zoo.  However, Amnesty International has warned that the arrival of the pandas “should not be a distraction from China’s human rights failings.” In particular the low protection of freedom of expression and the high number of executions – believed to be more than those in every other country combined – have been emphasised in light of the pandas’ arrival and the First Minister’s diplomatic visit to Beijing. The concerns were echoed by Labour MSP Patricia Ferguson saying that “Citizens have rights and it is the job of states to protect them universally.” Responding, Alex Salmond stated that China’s human rights record had been raised in a “friendly” way, linked to the philosophy of Adam Smith, which was more likely to have an effect than “jumping up and down from a distance”.

Legislation in Northern Ireland is due to come into force on 14 December that will allow those suffering from asbestos related pleural plaques to claim compensation. This statute follows similar legislation in Scotland that successfully withstood a Supreme Court challenge in the much discussed Axa General Insurance v Lord Advocate [2011] UKSC 46 decision. In Axa, the insurers unsuccessfully claimed that the legislation, which overruled a 2007 House of Lords decision that held those with no symptoms could not seek compensation, was a breach of their human rights and out with the Scottish Parliament’s competence. An article on the implications of the Axa decision, written by Sarah Smith, can be found here.

On 7 December, The Law Society hosted the UK Commission on a Bill of Rights as it came to Edinburgh. The Society’s Director of Law Reform Michael Clancy OBE welcomed the opportunity to contribute to the Bill of Rights debate but warned that the Society “question the contents of such a Bill of Rights given that the European Convention on Human Rights is very comprehensive and already used in Scotland as well as more widely across the UK and Europe.” Scottish figures appearing at the panel included Cameron Ritchie Law Society President, Aidan O’Neill QC, Gerry Moynihan QC; Kenneth Campbell QC, Iain Jamieson, Christine O’Neill, Professor Chris Himsworth, and Charles Mullin. As reported here in recent weeks, the consultation period on whether the Human Rights Act should be replaced recently closed, with the Scottish Human Rights Commission, the British Institute of Human Rights and the Equality and Human Rights Commission all noting their concerns at the prospect the introduction of a UK Bill of Rights.

In this vein, this week Professor Alan Miller, chair of the Scottish Human Rights Commission, gave evidence before the Scottish Parliament’s Justice Committee warning that if the Human Rights Act was replaced by a Bill of Rights then this may require the Scotland Act to be amended which may result in a two tier system in the UK.

The Zero Tolerance Trust launched a campaign in Edinburgh this week to eradicate violence against women in the workplace. Statistics provided by the Trust state that one in five women are subjected to violence during their lives with 75% of this number targeted in the workplace. The “Employers PACT” – Policy, Action, Communication and Training – aims enact a cultural change and help businesses challenge violence against women in Scotland.

Inclusion Scotland, has launched a human rights toolkit at the Scottish Parliament for disabled people aimed at providing “information that disabled people need to realise their human right to live independently.”

There were a number of articles published this week on the state of the Convention and European Court. Writing in The Guardian, Sigrid Rausing, has called for the European Court of Human Rights to be reformed but argued that there is no need to “fundamentally transform the relationship between the court and parliament in the UK” adding that “human rights is becoming entangled in a web of urban myths and populist conservative attacks.”  Baron Anthony Lester of Herne Hill, the Liberal Democrat Peer and Queen’s Council, writing in the Times (paywall), pointing his finger mainly at certain politicians and the media argued that “Sniping at Strasbourg Will Only Hinder Reform”. However, critiquing this article, Rosalind English, writing on the UK Human Rights Blog argues that the most “searing and authoritative criticism” has come not from the press or politicians but from the legal profession.

And finally, 10^th December will mark the United Nations Human Rights Day. In advance of the event the UN state that “it has been a year like no other for human rights. Human rights activism has never been more topical or more vital. And through the transforming power of social media, ordinary people have become human rights activists”. A global conversation on Human Rights led by Navi Pillay the High Commissioner for Human Rights, is due to take place simultaneously on Facebook, Twitter and the UN Webcast on Friday 9 December at 14.30 GMT.

Please Note

 Last week we erroneously stated that a march down the Royal Mile seeking to secure greater rights for victims of abuse in care institutions was organised in part by the Scottish Human Rights Commission. In fact, the Commission had no role in the organisation of the demonstration, which was an initiative by abuse survivors groups. We apologise for any confusion caused.