Saturday 1 August 2015

Human rights placing the nation in peril ? Don't be ridiculous !

The Nation truly in Peril - 1940
The Daily Mail Comment 1st August 2015 - "A Nation imperilled by the Human Rights Act."  The Mail describes the Human Rights Act 1998 as a "toxic piece of legislation, which allows (lawyers) to profitably ride roughshod over the wishes of Parliament and the British public."  One of the cases used in support of this statement is the Supreme Court's decision in R (Bourgass and another) v Secretary of State for Justice [2015] UKSC 54.  The case is discussed in my post of 29th July  and, even more eruditely, by Dr Mark Elliott in his excellent post on Public Lawyers for Everyone -  Bourgass in the Supreme Court: Solitary confinement, the Carltona Doctrine and Procedural Fairness 

The issue in the case was who could authorise the segregation (solitary confinement) of a prisoner: the Prison Governor or the Secretary of State for Justice?  The relevant regulations (links are in the 29th July post) were actually clearly worded.  The Governor could authorise segregation up to 72 hours.  Beyond that, the regulations required segregation to be authorised by the Secretary of State for Justice and it could be authorised up to a maximum of 14 days.  Two men - (and, yes, both men were in prison following conviction for very serious offences including terrorism-related offences) - were segregated for way beyond even 14 days without the authority of the Secretary of State.  The Supreme Court held that to be unlawful.

The reasoning was that COMMON LAW
(i.e. our OWN law developed by the judges) permitted decisions to be made by departmental officials in the Ministry and they would be regarded by the law as decisions of the Minister - (the so-called Carltona doctrine or principle).  That is clearly a sensible and reasonable position for the law to adopt since no Minister can take all decisions personally but, constitutionally, he is accountable for the decisions of his officials.  However, decisions of a Prison Governor could not be so regarded given the fact that the Minister did not have direct control over governors.  That was enough to decide this case.  Really and truly, it was no more than requiring the regulations to be applied as written.

The case did not depend on the Human Rights Act at all and the court, having considered the relevant case law (including that of the European Court of Human Rights), expressly stated that Article 6(1) (Right to Fair Trial) did not apply to segregation decisions since a prisoner does not possess any private law right to association with other prisoners and has no precisely defined entitlement as a matter of public law (see para 122 of the court's judgment).  English common law did require that a prisoner be told the reasons for his continued segregation so that he could, if he wished, make representations.

Some decisions based on human rights law are certainly open to outspoken criticism and that is justifiable so long as it does not misrepresent the truth.  However, it is wrong to criticise the Act for a decision which was not based on human rights at all. 

Has the Human Rights Act put the nation in peril?  Even by the standards of a newspaper that clearly dislikes the Human Rights Act, there has rarely been a more ridiculous comment.  Despite some undoubtedly controversial decisions, the Act has overall been highly beneficial to many.  If proof of this were needed, look no further than the excellent Rights Info website - 50 Human Rights cases that transformed Britain.

The two other cases referred to in the Daily Mail article in support of their argument are:

A) Mohammed v Secretary of State for Defence [2015] EWCA Civ 843- this judgment is complex and extends to 377 paragraphs  but it is an exceptionally interesting case.  The result is neatly summarised by Matrix Chambers - HERE   The Lord Chief Justice offers a short summary of the conclusions on "the main appeal" at paras. 8 to 10.

Para 8 states - "It is common ground before us, in the light of the decision in Smith v MoD, that, although SM was detained in Afghanistan, his detention was governed by the ECHR. We explain the territorial application of the ECHR at paragraphs 82 to 106 below. Our significant reservations in respect of the correctness of the decision extending the ECHR to the battlefield as established by the decision of the Strasbourg Court in Al-Skeini are set out at paragraphs 93 to 97. We are, however, bound by the decision of the Supreme Court in Smith v MoD which applies the decision in Al-Skeini."

 One article on the decision is The Guardian 30th July - British forces illegally detained Afghan suspect, court of appeal rules.

Previous post 21st March 2015 - Human Rights and the Battlefield

B)  Detention Action v Lord Chancellor [2015] EWCA Civ 840- a mere 15 pages and 51 paragraphs- and summarised by Counsel Magazine - HERE

The issue was the Fast Track Rules governing appeals to the First Tier Tribunal (Immigration and Asylum Chamber) against refusals by the Secretary of State of asylum applications.  The court said that the rules did not strike the right balance between (i) speed and efficiency and (ii) fairness and justice.  Adjustment was required but that was a matter for Parliament.


This post received mention on the UK Human Rights blog 10th August 2015.  Many thanks to them for including it in their "round up" of legal news.


  1. If you will read the Daily Hate Mail what do you expoect?

    1. It is what one expects from that newspaper BUT it is important that some people try to put the record straight.