17 September 2018
Conor Monighan brings us the latest updates in human rights law
In the News:
The CPS has said there is enough evidence to charge two Russian men with conspiracy to murder Sergei and Yulia Skripal. Although the Skripals survived, another lady called Dawn Sturgess later died of exposure to Novichok.
The two men visited Salisbury last March, at the same time the nerve agent attack took place. It is believed the two men, Alexander Petrov and Ruslan Boshirov, are military intelligence officers for GRU, the Russian security service. The CPS has not applied for their extradition because of Russia’s longstanding policy that it does not extradite its own nationals. A European Arrest Warrant has been obtained in case they travel to the EU.
In response, the two men have claimed they were merely tourists. In an appearance on Russia Today (RT), they said the purpose of their visit to Salisbury was to see its cathedral. Arguing that their presence was entirely innocent, the two men said they were following recommendations of friends. Petrov and Boshirov went on to say that, whilst they had wanted to see Stonehenge, they couldn’t because of “there was muddy slush everywhere”. The men insisted they were businessmen and that, whilst they might have been seen on the same street as the Skripals’ house, they did not know the ex-spy lived there. The Russian President, Vladimir Putin, has said they are “civilians” and that “there is nothing criminal about them”.
Theresa May’s spokesperson said: “The lies and blatant fabrications in this interview given to a Russian state-sponsored TV station are an insult to the public’s intelligence”. The Home Secretary, Sajid Javid, has said the men will be prosecuted if they ever leave Russia.
In Other News….
- Divorce laws are likely to see a major overhaul, with changes designed to lessen problems for former couples. At present, unless one can prove the marriage has broken down due to adultery, unreasonable behaviour or desertion, the only way to obtain a divorce without a spouse’s consent is to live away from them for five years. David Gauke, the Justice Secretary, has described this as creating “unnecessary antagonism” and said he wants to reduce anxiety caused by the process. A consultation on ‘no-fault’ divorces has been announced. This means that one side can notify the other of an intention to divorce, removing the need for ‘blame’. It would probably remove the ability of spouses to contest divorces. The potential change comes in the wake of Owens v Owens, in which the Supreme Court recently ruled Tini Owens could not divorce her husband until she had lived apart for five years. This is despite the fact that the pair have been living separate lives since 2015. More from the Guardian here.
- Prison staff went on strike this week. Staff made complaints about the level of violence in jails, safety and overcrowding. The total number of prison officers resigning from their jobs has more than doubled in the past two years. The strike led to problems in court as defendants did not arrive in court. Prison officers involved in the strike action were told they were acting illegally but, following talks, returned to work. They will be docked half a day’s pay. The prisons minister Rory Stewart, who has previously pledged to resign if his campaign to reduce drugs and violence in prisons is unsuccessful, suggested that the strikes were dangerous. The Ministry of Justice had originally sought an injunction to force officers to return to work, but in the event it was not needed. Sky reports here.
- The US Open Women’s Final was marked by controversy, as Serena Williams accused the umpire of sexism. Serena Williams was fined $17,000 (£13,100) for code violations, in part because she called umpire Ramos a ‘liar’ and ‘thief’. Although the umpire was following the rules, many have argued that male players can act in the same way without suffering similar penalties. The Women’s Tennis Association has publicly agreed with Williams’ assessment. In addition, some have suggested that racism tainted reports of the incident. They claim that excessive emphasis was placed on Williams’ anger, playing into the stereotype of the ‘angry black woman’. Still further problems arose in relation to claims of coaching, for which Williams received her first code violation. Whilst Williams denied she had been coached on court, her coach said that he had been coaching but Williams had not seen him. More from the BBC here and here.
In the Courts:
- Big Brother Watch and others v UK: The ECHR held that operating a bulk interpretation regime was not in itself a violation of the Convention. Governments have a wide discretion when deciding what is necessary to protect national security. However, such schemes must meet the six requirements laid down in Weber. In the present case, insufficient safeguards meant that the bulk interception of data via the Regulation of Investigatory Powers Act 2000 violated Article 8 ECHR. In particular, there was inadequate independent oversight of the selection and search process, and over the selection of related communications data for examination. This meant the interference with Article 8 was not restricted to that which was “necessary in a democratic society”. The Court also held, by six to one, that obtaining communications data from communications service providers violated Article 8. This is because EU law requires such actions to be limited to the purpose of combating “serious crime”. Both regimes violated Article 10, because there were insufficient safeguards for confidential journalistic material. This was particularly troubling because of its consequences for press freedom. Finally, the ECHR held that procedures for sharing intelligence with foreign governments did not violate Article 8.
- The Good Law Project, R (On the Application Of) v Electoral Commission & Ors: The case concerned whether the Electoral Commission had correctly interpreted the meaning of “referendum expenses”, contained within s.117(1) of the Political Parties, Elections and Referendums Act 2000 (“PPERA”). The court found that the phrase “referendum expenses” was composed of three definitional sub-elements. However, the dispute almost exclusively concerned the interpretation of the first of these parts, namely the meaning of ‘expenses incurred’. The claimant, Vote Leave and the Electoral Commission all offered alternative interpretations of ‘expenses incurred’. The Court ruled that an ordinary reading of the words accorded with the view outlined by the claimant. ‘Expenses incurred’ meant “voluntarily making a payment which diminishes a person’s assets as well as by assuming an obligation or liability to make such a payment” . Vote Leave’s payments to AggregateIQ Data Services Limited (AIQ) therefore amounted to ‘expenses incurred’ and, by extension, “referendum expenses” . The Court further held that the Electoral Commission had misinterpreted the statute, because it had assumed that an individual or body which makes a donation to a permitted participant cannot thereby incur referendum expenses .
- City of Westminster, R (On the Application Of) v Transport for London (TfL) & Ors: The City of Westminster challenged Transport for London’s (TfL) decision to begin constructing a cycle superhighway. It argued that TfL’s decision was unlawful because it had failed to take into account a legally relevant consideration: namely that Westminster might refuse to approve of the scheme. The court agreed, given that Westminster’s consent is “so obviously material to a decision in light of the relevant legislation that it must be taken into account” (cf: Re Findlay). The plan envisaged one route, and not that there would only be partial implementation of it. The judicial review was allowed. The Court also held that TfL could not submit ‘additional reasons’ for its decision, because they were late, were inconsistent with the original reasons given, and went further than simple elucidation (cf: Ermakov). In any event, the additional reasons given were erroneous in important aspects.
On the UKHRB
I have written an article reviewing the Administrative Law Bar Association (ALBA) Summer Conference 2018, with a particular focus on human rights.
Guy Mansfield QC explained The Director of the SFO v ENRC, which concerned the scope and rationale of litigation privilege. See his post Litigation privilege: rationale and scope defined.
- ‘Disability, Education and Human Rights’: 26th September 2018, 5 Chancery Lane. More information here.
- ‘Celebrating the Contribution of Human Rights Defenders to the Rule of Law’: 9th October 2018, Portcullis House. More information here.
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