Things have gone quiet on the government's plans for a British Bill of Rights. This may be due to the impending referendum on the United Kingdom's membership of the European Union. Regular readers will no doubt recall that, back in February 2016, the Secretary of State for Justice told Parliament's EU Justice Sub-Committee that something would appear "soon." Mr Gove added that he was "at the mercy of the Prime Minister" but we would not have "too long to wait" - Post of 2nd February 2016 (see the end of the recorded session where Mr Gove responded to a question by Baroness Kennedy).
Concerns about Foreign Affairs:
Meanwhile, there is concern in the Foreign Affairs Committee that the Foreign Office has "downgraded" its emphasis on human rights - Foreign Office needs to raise the profile of human rights - Committee report April 2016 and The Guardian 5th April 2016. "The Committee is concerned that the words and actions of FCO Ministers have generated a perception that their work on human rights has become less important, despite funding for the FCO's dedicated human rights programme, the Magna Carta Fund, having been doubled to £10.6 million. The FCO needs to do a better job of selling its human rights work by evaluating it more effectively and presenting it in a more user-friendly fashion."
The role of the European Court of Human Rights:
Two recent and rather contrasting judgments involving the United Kingdom may be seen as raising the question as to what is the true role of the European Court of Human Rights. Article 19 of the European Convention on Human Rights states - "To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the protocols thereto, there shall be a European Court of Human Rights ..."
The court delivered its decision in the De Menezes case - (Silva v United Kingdom - previous post). This decision seems to demonstrate the court taking the stance that its role is to review national law and practices against the standards set by the convention. Assessed in this way, the actions of the United Kingdom in investigating the shooting of Mr De Menezes were held to have met convention standards. [Justicegap - Oliver Carter - Jean Charles de Menezes:one more chance for justice denied].
At the end of March, a Chamber of the court gave judgment in Seton v. United Kingdom (application no. 55287/10). It was held that there had been: no violation of Article 6(1) in conjunction with Article 6(3)(d) (right to a fair trial and right to obtain attendance and examination of witnesses) of the European Convention on Human Rights.
The case concerned the complaint of a criminal convict about the admission of evidence of an absent witness at his trial. The Court applied the principles established in its Grand Chamber judgments in two cases concerning the absence of witnesses at a public trial, Al-Khawaja and Tahery v. the United Kingdom and Schatschaschwili v. Germany (2011 and 2015 respectively). It found that the criminal proceedings as a whole had not been rendered unfair by the admission in evidence of the recordings of the absent witness’s telephone conversations, having regard to the fact that there had been other decisive incriminating evidence, and that the trial judge had applied procedural safeguards capable of counterbalancing the witness’s absence at trial.
The UK Human Rights Blog 4th April 2016 has looked at the Seton judgment - see Fraser Simpson "Upholding fundamental rights or ensuring accurate verdicts? The E Ct HR and the use of unchallengeable witness evidence." Simpson concludes by saying - " .... the balancing process places an undue weight upon the existence of other incriminating evidence against the accused. The position appears to be that it is more acceptable to deny the accused the right to cross-examine a witness if the prosecution’s case against him/her is strong. This move towards focussing on the accuracy of the verdict, as opposed to upholding the rights of individuals, is a potentially worrying development. Indeed, the contemporary Strasbourg position appears, in effect, similar to the Court of Appeal’s consideration of the safety of the conviction.
It could be argued that the ECtHR may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court."
Selecting a Judge for the European Court of Human Rights:
Some are arguing that the Secretary of State for Justice has too much power over the selection of a Judge for the E Ct HR - The Guardian 1st April.
The selection process for Britain’s next judge at the European court of human rights in Strasbourg has been passed to one of the cabinet’s leading Eurosceptics, Michael Gove. The present incumbent, Paul Mahoney, retires in September. The longlist of up to 10 candidates has already been handed over by the Judicial Appointments Commission (JAC) to the justice secretary who will reduce it down to three eligible lawyers, but critics have questioned whether he should have such powers.
Mr Gove has to nominate 3 candidates. The final choice of one is made by the Council of Europe's Parliamentary Assembly which elects the judges - Article 22 of the European Convention.
Some Australian concern regarding human rights is reflected in a post on the UK Constitutional Law Blog* - "The first four years of Australia's Parliamentary Scrutiny Regime for Human Rights". Australia is an exception when it comes to the legal protection of human rights. It remains the only democracy without a national human rights act or Bill of Rights. This remains the case despite a national consultation recommending in 2009 that Australia enact a federal law based upon the Human Rights Act 1998 (UK), Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Vic). The consultation reached this conclusion after identifying a range of human rights problems and finding that a clear majority of the Australian people favour such an instrument.
Instead, Australia adopted a weaker form of protection involving Parliamentary scrutiny but this is, in the view of the authors, proving to be unsatisfactory. The authors argue that - "By giving the judiciary a role to play, the responsibility of ensuring compliance with human rights would no longer fall exclusively on the branch of government most frequently charged with breaching those rights. The recommendation of the national consultation should now be revisited, and the parliamentary scrutiny regime incorporated within a national human rights act that combines parliamentary deliberation with appropriate judicial protection for human rights."
* G. Williams and D. Reynolds, ‘The First Four Years of Australia’s Parliamentary Scrutiny Regime for Human Rights’, U.K. Const. L. Blog (6th Apr 2016) (available at https://ukconstitutionallaw.org/)