Political responses to human rights judgments

The current constitutional furore over the nature of the Brexit settlement has overshadowed talk of repealing the Human Rights Act. While the optimistic among us may be encouraged to believe the subject has now dropped from the political agenda, there is no evidence to suggest that reform will be forgotten. The prime minister has suggested an intention to fight the next general election with a commitment to formally withdraw from the European Convention on Human Rights (going much further than her predecessor).  

With this possibility in mind, it is interesting to consider the latest report from the Joint Committee on Human Rights examining the implementation of adverse judgments from the European Court of Human Rights. What is notable is the sizable reduction in judgments against the UK over the last decade (four violations in 2014 and 2015 compared to 19 in 2007 and 27 in 2008). Further, only 0.4 per cent of the ECtHR’s applications under consideration concerned cases against the UK.

With regards to violations, it is apparent that in most cases the government responds positively, resulting in significant changes in the law. Examples include reform of investigations into civilian deaths in Iraq (pursuant to Al-Skeini v UK [2011] ECHR 1093) and reform of the coroner system (pursuant to McDonnell v UK [2014] ECHR 1370). The obvious exception concerns the prisoner voting cases, a perhaps surprising reluctance given that the court’s main concern is the blanket ban which would be relatively easy, legally speaking, to address.  

Over the same period there have been five declarations of incompatibility. While this may suggest that a human rights culture now pervades the legislative process, it must be restated that HRA detractors worry more about perceived judicial interference via the section 3 interpretative obligation. Nevertheless, the Joint Committee’s report suggests that much of the negativity surrounding the approach of the Strasbourg court may have been exaggerated for political ends.

Pollution laws

Although not a first generation right protected by the ECHR, little can be more important to individual wellbeing than the right to breathe air free from pollutants.  The series of judgments concerning the UK’s failure to comply with EU pollution laws culminated in Mr Justice Garnham’s decision in ClientEarth (No.2) v Secretary of State for Environment, Food & Rural Affairs [2016] EWHC 2740 (Admin) to order the government to produce a draft revised air quality plan which could be presented to the European Commission by 31 July 2017. 

It has been widely reported that lobbying from the UK government resulted in the decision to water down a directive aiming to reduce deaths from pollution by 52 per cent. The impact of Brexit, it would seem, could be particularly significant for the health of the UK.

Bedroom tax cases

The welfare needs of the most vulnerable members of society were debated in the so-called ‘bedroom tax’ cases of R (on the Applications of Carmichael, Daly, A and Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58. The Supreme Court held that the reduction of welfare benefit payments to the applicants breached the principle of non-discrimination in article 14 in conjunction with the right to a private and family life (article 8). Lord Toulson pointed out inconsistencies in the implementation of the legislation which treated the accommodation needs of disabled adult partners differently to those of disabled children.

In the linked case of A, the facts and the outcome were rather different. A concerned the right of a woman housed under a protective sanctuary scheme to remain in her home, which had been specifically fortified for her needs but was larger than she needed. The court ruled that the discrimination could be justified by discretionary housing benefit which the applicant could apply for (without guarantee of success). It is rather unfortunate this case was not treated separately as Lady Hale (dissenting) noted that it concerned very different legal principles, namely gender equality and discrimination on the grounds of sex.

The UN Committee on the Rights of Persons with Disabilities recently criticised the government for a series of measures, including the bedroom tax and cuts in legal aid, which amounted to ‘grave or systematic violations of the rights of persons with disabilities’.

Publication of judgments

The relationship between freedom of expression (article 10) and the right to a fair trial (article 6) was the subject of renewed attention in a case concerning the second child of Ben Butler, who was convicted of murdering his first daughter after she was returned to his custody following a court order. In Re C (a child) [2016] EWCA Civ 798, a group of newspapers applied for publication of Mrs Justice King’s judgment in the Family Court which had found Butler to be responsible for his daughter’s death. Mrs Justice Pauffley ruled against publication because of the risk of prejudice to any retrial. 

However, the Court of Appeal ruled that adequate safeguards existed to protect article 6 in criminal cases, notably: ‘(i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place)’.

Investigatory powers

A ‘watch this space’ alert accompanies the Investigatory Powers Act 2016, sometimes referred to as ‘the Snoopers’ Charter’. Shortly before coming into force, the Court of Justice of the EU ruled in the joined cases of Tele Sverige/Watson & Ors (C-203/15/C-698/15) that the Act’s previous incarnation, the Data Retention and Investigatory Powers Act 2014, was unlawful. The unfortunate timing of the CJEU ruling, coupled with very limited opposition in the House of Commons, has meant that many controversial covert powers remain, augmented by sweeping new powers which replace many of the covert ones. Internet connection records will be retained by service providers to enable the identification of the sender, the services a person is using, or whether a person has been accessing or making available illegal material online. The service provider can be required to retain this data for up to 12 months.  It seems likely that there will be legal challenges under EU law and article 8 ECHR.

Suspects’ rights

Following up from the March 2016 update (SJ160/8), the Grand Chamber of the CJEU has now given judgment in Ibrahim and Others v UK [2016] All ER (D) 57 (Sep) concerning the rights of suspects in the 7 July bombing. The court found that the government had convincingly demonstrated the existence of an urgent need to avert serious adverse consequences to life and physical integrity of the public. Therefore, the proceedings were fair in the circumstances. However, in the fourth case a violation of article 6 occurred when the police did not inform the applicant of his right to remain silent at the point when he became a potential suspect rather than a witness.

Actions abroad

Despite government frustration, the Supreme Court has again been called on to review actions of British agents and service personnel overseas.

In Rahmatullah (No 2) v Ministry of Defence and Mohammed v Ministry of Defence [2017] UKSC 1, the Supreme Court assessed the liability of the British government for torts committed overseas by British and US forces. The court held unanimously that the doctrine of Crown act of state defeated claims brought by non-UK citizens seeking to sue the government in the English courts in respect of alleged torts committed abroad. Lady Hale reasoned that Crown act of state applied to acts that are by their nature sovereign and inherently governmental, committed abroad in the conduct of the foreign relations of the Crown and so connected to that policy as to be necessary in pursuing it. It could not therefore apply to acts of torture as such acts were not inherently governmental. 

The government will have derived less comfort from the rendition judgments of Belhaj and Others v Straw and Others [2017] UKSC 3. Having been detained with his wife in Malaysia, Belhaj was subsequently transferred to Libya by British agents where he was detained and tortured. The second applicant, Rahmatullah, was arrested in Iraq and spent ten years detained in Afghanistan without charge. The Supreme Court unanimously rejected the defence of foreign act of state through which the government had referred to the embarrassment caused by intervening in foreign relations. For Belhaj this is the latest step towards satisfying his claim for nominal damages and an apology from the British government.  

Finally, it seems that the work of human rights lawyers may be reaching its natural conclusion. A computer algorithm, described as the ‘artificially intelligent judge’, was developed by academics at UCL and the University of Sheffield to analyse the text of 584 Strasbourg judgments. The research hinted at the significance of certain non-legal, moral arguments in successful outcomes and successfully predicted the outcome in 79 per cent of cases.

Dr Helen O’Nions is a senior lecturer at Nottingham Law School, Nottingham Trent University

@LawNLS www4.ntu.ac.uk/nls

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