Legality of War, More Miranda and Judicial Review Moving Out – The Human Rights Roundup
2 September 2013
Welcome back to the UK Human Rights Roundup, your regular glittering galaxy of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
Military intervention in Syria has been greatly discussed this week in the media. Here, we look at how legal it would be for the UK to send troops over. Meanwhile, David Miranda’s hearing continues, and many judicial review claims are due, soon, to move from the High Court to the Upper Tribunal.
In the News
Al-Sweady Public Inquiry resumes today
The Al-Sweady Inquiry resumes today in London after a summer break. The Inquiry is investigating allegations of mistreatment and unlawful killing by British soldiers alleged to have taken place in Iraq in May 2004. The BBC reports that the Inquiry will hear from up to 200 British military witnesses (preliminary schedule here), having already heard from a number of Iraqi and expert witnesses.
1 Crown Office Row’s Neil Garnham QC, Neil Sheldon, Adam Wagner, Isabel McArdle, Matthew Flinn, Karwan Eskerie and Lois Williams are acting for most of the soldier witnesses.
Syria Sorrows
The legality of military intervention in Syria has dominated the news this week. Questions over legality played a crucial part in the debate, which led to a Parliamentary vote against intervention.
The attorney general, Dominic Grieve, set out a page and a half of arguments justifying military intervention on behalf of the Government. It is claimed that ‘the legal basis for military action would be humanitarian intervention’. It is further stated that if action in the Security Council is blocked, the UK can still be permitted to intervene under the doctrine of humanitarian intervention, if three conditions are met, which is claimed to be the case.
In an excellent piece, the BBC’s Clive Coleman explains that there is a developing legal framework for military intervention on humanitarian grounds, known as the Responsibility to Protect, or R2P. He lays down the three principle elements and notes that there are a number of safeguards in R2P: ‘there needs to be powerful evidence of an ongoing atrocity; peaceful measures, such as diplomacy and sanctions, must have been exhausted; and, any force used must be specifically targeted at stopping the atrocity and protecting the civilian population’.
The Guardian reports, however, that leading experts in international law have attacked the government’s legal case, and that ‘it does not set out a sound or persuasive legal argument’. Importantly, some see the second condition as not having actually been met – that other avenues to prevent further chemical attacks have been exhausted. Further, Philippe Sands QC states, ‘If Iraq teaches us anything, it is that Parliament must insist on seeing the full legal advice, caveats and all, and the full evidential basis on the key factual issues before proceeding to take any decision.’
The Miranda Matter
The Miranda matter continued this week with a short hearing. For the UKHRB posts on the contentious issue, see here, here and here.
At the latest interim hearing, Carl Gardner, of Head of Legal, describes how it was agreed that the injunction should continue on the same terms. This will allow the defendants to inspect the detains material in order to investigate offences under section 58 and section 58A of the Terrorism Act 2000 and under the Official Secrets Acts 1911 and 1989. The witness statement of Oliver Robbins, served on behalf of the Government, can be found here – to be read alongside Bindmans’ (Miranda’s lawyers) press release.
Gardner discusses the circumstances under which the government and police may ‘inspect, copy, disclose, transfer, distribute or otherwise interfere with the material obtained from David Miranda under Schedule 7 of the Terrorism Act 2000’. He concludes that on top of being able to still inspect material for national security purposes, they ‘can now use it for criminal investigations which they’ve been restrained from doing for the past week’.
Immigration Judicial Review mostly moves to the Upper Tribunal
The transfer of judicial review claims from the High Court to the Upper Tribunal will take place on 1 November 2013. Free Movement blog discusses which immigration judicial reviews are to be transferred and that ‘the main changes in the short term seem to be that a wig will make one look silly, the venue is less impressive and the judges are more junior in rank’.
Other news
- A great piece by Joshua Rozenberg on the appeal of accessible judgments
- Sara Williams reports on a 12 week consultation currently under way by the Home Secretary to review the stop and search powers of the police. Statistics show black people are 7 times more likely to be searched than white.
- Wayne David MP discusses his recent trip to Strasbourg with Sadiq Khan, Labour’s Shadow Justice Secretary. He rejects the common complaint that Strasbourg often undermines the UK, noting that most UK cases are dismissed as invalid or the Court finds in favour of the UK. Nevertheless, he does have a number of criticisms, such as the huge backlog of cases and the judges of ‘varying quality and expertise’. However, he concludes that reform is not the aim of many Tories, it is just to leave the European Convention on Human Rights. He likens this undermining of human rights to ‘the same mind set’ that is reducing legal aid, restricting judicial review and ‘which means that some Tories are now in favour of breaking international law when it suits them’.
- The wife of a convicted terrorist has lost a challenge against police powers to stop and question people at airports. Lord Justice Gross said the stops were ‘neither arbitrary nor disproportionate’.’ See the UKHRB post here.
- The Lord Chief Justice’s annual report is available here.
Case Comments
- Lyndon Harris, at the UK Criminal Law blog, looks at the matter of Neil Wilson’s sentence being referred to the Court of Appeal by the Attorney-General. Wilson pleaded to various sexual offences. Harris discusses how, ‘8 months and 4 months consecutive – does not seem so low as to require the Court of Appeal to step in….if the sentence is increased, expect a double jeopardy argument for a reduction to the eventual, increased, sentence’.
- Emma Satyamurti examines the recent judgment of the UN Committee on the Rights of Persons with disabilities in the case of Nyusti and Takacs v Hungary. She notes that whilst much has been done to make employers and providers of goods and services take ‘reasonable steps to remove disadvantages faced by disabled people in accessing opportunities’ much more needs to be done, such as ‘dismantling attitudinal barriers’ to accessibility.
- Charles Foster dissects an important case which sees the court, for the first time, sanctioning the sterilisation of an incapacitous male patient (An NHS Trust v DE and others [2013]). He points out that it is surprising that the patient is seen to have the capacity to consent to sexual intercourse, but not to a vasectomy and that, ‘one cannot really criticise the parties for wanting the decision about vasectomy to be endorsed by the court, but it is hard to see, on the facts that were found, that it was really necessary’.
In the Courts
- CM, Re Judicial Review [2013] ScotCS CSOH_143 (27 August 2013) August 27, 2013
ScottishSmoking ban in Scottish psychiatric facility breached mental health laws and Art 8 ECHR
- A NHS Trust v DE [2013] EWHC 2562 (Fam) (16 August 2013)August 17, 2013
Court rules it is in best interests of severely mentally disabled man to have vasectomy
- Ignaoua, R (On the Application Of) v Secretary of State for the Home Department [2013] EWHC 2512 (Admin) (09 August 2013) August 11, 2013
Government termination of judicial review via certification under Justice and Security Act “troubling” but lawful, clear Parliamentary intention even though no new rules in force yet
- D, R (On the Application Of) v Worcestershire County Council [2013] EWHC 2490 (Admin) (09 August 2013) August 11, 2013
Worcestershire funding cut for disabled adult community care was lawful, consultation and PSED exercise appropriate
- JM, R (On the Application Of) v Secretary of State for Justice [2013] EWHC 2465 (Admin) (21 May 2013) August 7, 2013
Closure of Young Offenders Institute at Ashfied was lawful and did not breach Art 14 ECHR, rules High Court
- Nash, R (on the application of) v Barnet London Borough Council [2013] EWCA Civ 1004 (02 August 2013) August 5, 2013
Judicial Review challenge to ‘EasyCouncil’ Barnet outsourcing fails as was brought too late
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.
- What has the European Convention on Human Rights ever done for us? – 10 – 2013 – Events – Public events – Home
- Human Rights Conference 2013: Lawyers as guardians of access to justice?
30/10/2013 09:00 – 17:00; Venue: The Law Society, from £200
- EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts
-
ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm
- More developments under schedule 7 – August 28, 2013 by Rosalind English
- “Law is no trade, briefs no merchandise” – August 27, 2013 by David Hart QC
- Miranda case shows we need more secrecy laws…or does it? – August 26, 2013 by Adam Wagner
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Much as the international law question is interesting regarding Syria, it isn’t really anything to the point. There are a lot of straw men arguments floating around. No-one disputes that what has happened in Syria todate has been a disaster. No-one disputes that the use of chemical weapons is appalling. There is a moral case to do something about it, and perhaps a legal one too. But we then hit the rocks of reality: the real question is whether we have the capacity to do anything about it.
If we fire a few missiles at Syria the regime may respond in a variety of ways. It might cease using chemical weapons and simply go back to airstrikes, artillery and other means which have so far killed 100,000 people. What the moral or legal difference between killing by those means and killing by chemical weapons is I am unsure – both seem horrendous enough.
Alternatively, the regime might _increase_ its use of chemical weapons to try and hasten the defeat of the rebels before Western intervention can make a telling difference.
Or it might try something seriously desperate such as attacking Israel, in the hope of drawing in its Iranian ally and sending the West’s interest well and truly elsewhere.
Or it might sponsor some terrorist attacks on our soil.
Or the Russians and/or Iranians might (if they haven’t already) supply supersonic anti-shipping missiles to the Syrians, who will use them to sink a few Western warships and cause chaos among Western leaders about what to do in response.
It seems to me that Assad will probably still win the civil war, and all we will do with a few token strikes is delay his victory – and consequently increase the casualties on all sides.
Or the regime might fall – in which case the civil war will continue until the country either splits into different territories with an uneasy truce, or until one side is strong enough to crush the rest.
Those calling for intervention must answer two questions: (i) what is the precise goal of any military action; and (ii) how far are you prepared to go to achieve that goal; that is, if the initial strikes fail, how much force are you going to use (consequent questions including how much blood and treasure you are prepared to expend).
As well as the obvious lessons from Iraq and Afghanistan, we might also remember Kosovo (an illegal war, incidentally, whatever one thinks of the moral situation), where a few token strikes did not deter Milosovic, forcing the West to mount a very expensive bombing campaign that only succeeded when the surrounding countries started to join NATO, thus opening up land borders and the possibility of a quick ground assault.
What we might do instead is assist Jordan by supplying tents, food, sanitation equipment etc for the increasing number of refugees it is taking from the conflict. That would be a humane and tangible contribution even if it would not stop the killings in Syria itself.