Defamatory Tweets, Legal Aid Armageddon and Burkha Bans – The Human Rights Roundup

2 June 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular chocolate selection box 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.

Much of the news this week relating to the media: tweeting, printing and everything in between.Chris Grayling’s thriftiness also maintains the interests of commentators, academics and lawyers; and cases involving the freedom of religion remain at the forefront of the ECtHR as the Strasbourg Court reforms.

by Daniel Isenberg

In the News

Public Interest v Interesting the Public

A lot of media-related stories have been making this week’s headlines, ranging from defamation to press freedom to “lads’ mags”. The legal story of the week, however, was “that tweet” by Sally Bercow, which the High Court has found to defame Lord McAlpine in either its “natural and ordinary” or “innuendo” meaning (see “In the Courts”). Hugh Tomlinson QC writes that it is difficult to find a defamatory allegation in the “plain ordinary meaning” of the tweet, as “the reader who had paid no attention to the media would simply not understand what the tweet was about. It would probably come across as another, unfathomable, twitter ‘in-joke’.” He adds that the difference between innuendo and plain meaning may appear technical, but is an important one with ramifications when quantifying damages.

Press freedom is rarely out of the news and Hugh Tomlinson QC has a second post on Inforrm, analysing the ECtHR’s recent decision in OOO ‘Vesti’ v Russia. In that case, the Court found that the order to publish a retraction and an award of damages in a defamation claim did not breach the journalist’s or the newspaper’s rights under Article 10 (freedom of expression). Of particular interest is Strasbourg’s upholding of an order to make an apology, as well as the extraordinary period of 10 years for a determination to be made in this case – something, he notes, that goes beyond the “reasonable time” expected of domestic courts under Article 6. The BIICL recently hosted Strasbourg Judge Boštjan Zupančič, whose talk pointed to “the absence of a a culture of privacy rights in the United Kingdom”.

Meanwhile, lawyers have joined UK Feminista and Object in a campaign to have ‘lads’ mags’ removed from supermarkets and newsagents, otherwise the retailers could face legal action, chiefly related to sexual harassment under the Equality Act 2010. On his blog, however, Darren Newman suggests that shops selling such publications are not in breach of discrimination legislation. He argues that the campaigners’ legal arguments are “highly speculative”, and can, in fact, be damaging in that they add to the “political correctness gone mad” narrative that is used to undermine support for anti-discrimination legislation.

Cutting the Legal Aid Bill

Chris Grayling has been looking at ways to cut the MoJ’s budget, and two feature prominently in this week’s news. The first, as ever, is proposals to cut legal aid, in particular for judicial review: 90 QCs have called the proposals “unjust” The Public Law Project has gone further, suggesting that the lack of data underpinning the government’s proposals could render any reform unlawful, and subject to judicial review. Conor Gearty points to the fact that under LASPO, “severe” limits on legal aid for judicial review have already kicked in and what is further proposed amounts to “effective impunity within a system of notional accountability”.

Francis FitzGibbon’s article in the London Review of Books posits that the current process of cutting legal aid amounts to a “fundamental shift in the relationship between the government and the governed”, especially alongside the Justice and Security Act and current attitudes to human rights. He points out that hitting those most affected (those who cannot afford lawyers: foreigners, prisoners, those accused of crimes) by the changes is essentially free of political cost, and could even be beneficial to any government; whilst those who benefit from changes are likely to be developers, building firms, and those, like Eddie Stobart, who may be looking to bid for legal aid contracts. Cuts have not just hit civil legal aid, but the MoJ also is looking into proposals to place a cap of £37,500 on joint disposable income to be eligible to receive all legal aid. The Daily Telegraph suggests: “Mr Grayling wants to save £220 million and is squeezing the middle classes to pay for it by introducing a threshold that will hit almost everyone with two working partners in the home.”

Another mooted money-saving proposal has been privatisation of the courts’ system. Under this model, the courts would extract greater fees from commercial litigants and would seek investment from hedge funds, whilst a Royal Charter (as is proposed for a press regulator) would ensure independence. Whilst many have criticised these suggestions, John Hyde in the Law Society Gazette agrees that instinctively it feels wrong to privatise our system of courts, but does suggest that a private enterprise could improve service and accountability.

Religion and Human Rights

It has just been confirmed that the three other applicants whose claims were rejected by the ECtHR alongside the successful application in Eweida v UK will not have their cases heard by the Grand Chamber, the highest level of appeal in the European Court of Human Rights. The Law and Religion UK Blog also has a useful roundup featuring an update on the Marriage (Same Sex Couples) Bill and the granting of leave to appeal to the Supreme Court in Ms Hodkins’ search for permission to marry her fiancé in a religious ceremony at the Scientologists’ chapel in London.

Meanwhile, a challenge on human rights grounds to France’s burka ban will go directly to the Grand Chamber of the ECtHR. The particular applicant points out that no relative puts pressure on her to wear the burka and whilst she agrees not to wear it in some circumstances, wants to be able to wear it when she chooses.

Finally, over the pond The Economist has reported that the governor of Georgia has overruled a decision by the officials who oversee the state parks to remove free bibles from lodge cabins. In response, the American Atheists have donated tomes of their own and await guidance from Governor Deal on how to get their own literature into cabins.

Advisory opinions in the European Court of Human Rights?

The Religion and Law Blog also observes that the new Protocol 15 to the ECHR (of which it provides a useful summary) would have made no difference to the outcome in Eweida. Over on the UK Constitutional Law Group, Noreen O’Meara comments that the reduction in time limit from six to four months to apply to the ECtHR is the most “eye-catching” proposal under Protocol 15, and suggests that the UK “is not expected to be at the front of the queue” to ratify Protocol 16, which would allow national courts to seek advisory opinions from the Strasbourg Court.

Detention and Secrecy

Up to 85 Afghan nationals are being held in Camp Bastion, reports the BBC, and their legal teams claim that in some cases this may be unlawful. British forces are permitted to detain suspects for 96 hours, or longer in “exceptional circumstances”, however legal representatives of 8 litigants suggest their clients have been held without trial for up to 14 months. Meanwhile, the UN Committee Against Torture has criticised the UK government, focusing on actions during the conflict in Iraq. They also point to legal loopholes for British official to escape liability under both the Criminal Justice Act 1988 and Intelligence Service Act 1994. Four key areas were identified: overseas torture; Shaker Aamer’s continued detention in Guantanamo Bay; the forced deportation of Sri Lankan asylum seekers; and inquiries into past abuses in Northern Ireland.

On a detention-theme, Laurens Lavrysen on Strasbourg Observers calls for the ECtHR to provide more guidance on prisoners’ rights: in particular, he suggests there is a lack of clarity around the right of access to a toilet in a private manner; and the right to have glasses. What he goes on to suggest is that the Court should eschew its obsession with thresholds, and instead provide clearer guidelines to Member States.

As Maya Lester on the European Sanctions Blog notes, Baroness Warsi has delayed the government’s response to Lord Pannick’s question about the use of classified evidence at the Court of Justice in actions for annulment. The government will wait for any proposals to be published before scrutinising them. From secrecy to openness, and The Economist heralds President Obama’s latest approach to drone warfare as potentially shaping the future of conflict. The Commander-in-Chief suggested moving drone strikes from under the aegis of the CIA to the more transparent military; congressional oversight; and perhaps even a special court or independent overseer.

Also in the News

• Two cases on mental capacity and abortions
• Assisted reproduction and parental rights
• Top 10 lines from Ward LJ
• Dealing with pupillage rejections

In the Courts

• McAlpine v Bercow [2013] EWHC 1342 (QB) Tweet by Sally Bercow mentioning Lord McAlpine was defamatory in its plain or innuendo meaning
• Animal Defenders International v. the United Kingdom [GC] – 48876/08 Court gives information note on no breach of Article 10.

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Critical Debates on Counter-Terrorist Judicial Review June 12th, Durham Human Rights Centre
• A Practical Introduction to Human Rights (One Day Course) Birmingham (4th July) / London (9th July)
• Legal Aid Question Time 18th June, 18:00-19:30 – Church House, Dean’s Yard, London
• Save UK Justice Demo 4th June, 16:30-19:30, Ministry of Justice
• UCL & Bindmans Debate: International Human Rights Breaches
• State Accountability v State Immunity, UCL Faculty of Laws Events, Wednesday, June 19, 2013 at 6:00 PM (BST)

UKHRB posts –

• Death Penalty Legal Funding Refusal: Appeal Court Confirms Limits of Human Rights Act – May 29, 2013 by Matthew Flinn