Search

N/A

When the Independent Human Rights Act Review (IHRAR) was announced, the Human Rights in Action (HRiA) team were reassured, on the one hand, to see that its overriding mission would be to consider how the Human Rights Act (HRA) is working in practice and whether any change is needed. But on the other hand, we were concerned, first by the fact that the IHRAR’s “terms of reference frame[d] the review against a politically polarised backdrop - concerning how it allegedly allows the judiciary to usurp the power of the executive for instance” and, secondly, by the fact that the terms of reference “fail to ask the cardinal question of whether the HRA has effectively protected individual rights in the UK”. As academic human rights experts who have observed, analysed and, in collaboration with others, worked to promote – through our scholarship, teaching and public engagement activity – the indisputable positive influence of the HRA in protecting human rights in the UK, we were strongly motivated to join forces, with the ambition of providing comprehensive, evidence-based responses to the key questions being asked by the IHRAR. The HRiA project reflects, and is the mechanism that allows us to pursue, this ambition. In the context of this project, the HRiA team invited some of the foremost human rights experts in their fields to answer the fundamental question of how the HRA has shaped UK law and UK courts over the last two decades, and to consider the questions that the IHRAR asked in its call for evidence. The HRiA submission to the IHRAR comprises 20 contributions by 26 experts which provide answers to some of the IHRAR’s central questions, while taking particular care to highlight the continuous positive impact of the HRA in human rights protection in the UK. The individual expert contributions are reproduced in their entirety in this submission, and we are submitting them to the IHRAR with the hope that they will inform its work. We feel that, read together, they highlight the significant value of the HRA to the lives of everyone in the UK. Taking into account that this report is not a submission from a single author but a product created by a group of independent experts, we have exceeded the suggested maximum word count for a single submission. We have made all of the contributions from the HRiA project available on our website, which we will continue to update with new contributions in the future. In addition to informing the IHRAR’s work, we remain committed to engaging with the wider public to show the positive impact of the HRA and alerting them to the risks inherent in the potential undermining of its key protections.

Text, Cases and Materials on Public Law and Human Rights integrates a diverse and contemporary collection of cases and materials with an authoritative narrative commentary from two leading academics in the fields of public law and human rights. The text intersperses extracts from leading cases, academic commentary and parliamentary and governmental material to produce an all-encompassing student companion to constitutional, administrative and UK human rights law. This third edition has been fully updated and includes coverage of: the Governance of Britain reform package and the Constitutional Reform and Governance Act 2010, the Constitutional Reform Act and the new Supreme Court, the Serious Organised Crime and Policing Act 2005 and the impact of anti-terrorism legislation on the rule of law and police powers. There is comprehensive coverage of the Jackson case, Bancoult and the royal prerogative, the 2008 White Paper on Lords reform, the impact of the Parliamentary Standards Act 2009 and the Kelly Report on parliamentary privilege, and of the Wright Committee Reforms on the Commons. There is in-depth discussion of the latest leading cases in judicial review and key decisions under the Freedom of Information Act. Furthermore, the book includes extensive coverage and analysis of a range of recent developments in the human rights field, including the key Human Rights Act cases of Belmarsh, Re P, Huang and YL and the Strasbourg decisions in the Marper (DNA) case and A v UK on detention without trial; the Austin and Laporte decisions on public order in the House of Lords are discussed together with the latest leading cases on freedom of expression. The possibilities of repeal of the Human Rights Act and of the future introduction of a British Bill of Rights are given consideration.

Reflects on whether the Prevent strategy, intended to avoid persons being drawn into terrorism, is chilling expression in schools. Examines Prevent's operation, whether the term "extremism" is over-broad, whether referrals of pupils hinders free speech by creating suspect groups in the Muslim community, and the difficulty regarding external speakers. Notes the challenge of balancing restrictions with freedom of expression, and possible reforms.\ud Legislation cited\ud European Convention on Human Rights 1950 art.10

This article interrogates restrictions on speaking events in universities created both by recent student-led efforts at ‘no-platforming’ and by Part 5 of the Counter-terrorism and Security Act 2015 which placed aspects of the government’s existing Prevent strategy on a statutory basis for the first time. The statutory Prevent duty as it applies in universities includes, under the accompanying Guidance, curbing or monitoring such events on the basis that they could have an impact in drawing persons into terrorism. This article will place the combined impact of Part 5 and student-led curbs on campus speech in context by juxtaposing a range of pre-existing restrictions with the various free speech duties of universities. Focusing on speaking events, it sets out to evaluate the results of this chequered situation in terms of the current state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre-emptive strikes against some campus-linked speech articulating non-mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.

This chapter examines the criminalization and quasi-criminalization of terrorism, focusing on emerging trends and tensions with human rights law in the UK. In particular, it considers two recently emerging trends in counterterrorism against the backdrop of the terrorist attacks in Europe in 2015–2017: the reliance on very broad “precursor” terrorism offenses—the creeping criminalization of terrorism—and the accompanying reliance post-9/11 on quasi-criminal non-trial-based preventive measures such as control orders and Terrorism Prevention and Investigation Measures (TPIMs) under the Terrorism Prevention and Investigation Measures Act 2011 (TPIMA). These trends are explored in relation to the current counterterrorism and national security context and to resultant tensions with the rights enshrined in the European Convention on Human Rights and scheduled in the Human Rights Act 1998 and common law principles.

This chapter points out that derogation from the ECHR under Article 15 ECHR was designed after the Second World War precisely to allow contracting states to meet emergencies such as the one represented by the current “war on terror,” but to remain within the ECHR system, while suspending adherence to certain rights on a temporary basis. Article 15 allows states to cease their adherence to a number of Convention rights during the period of the emergency. It might be expected therefore that reliance on derogations would be particularly significant at the present time. But the chapter finds that very few derogations have been sought from ECHR contracting states despite the recent very significant rise in terrorist activity. Given that derogations have played little part in counterterrorism efforts in most of the ECHR contracting states, a significant degree of continued adherence to the ECHR has been maintained, but some attention has turned to other methods of exploring the evasion of its protection. This chapter explores the reasons behind the lack of reliance on derogations and the implications of turning to such other methods as alternatives.

INTRODUCTION In contrast to opposite-sex unmarried partners, same-sex partners did not receive recognition as ‘families’ under Article 8(1) of the European Convention on Human Rights until recently. But as same-sex couples in Europe increasingly sought recognition and protection of their relationships, a number of them turned to Article 8, read with Article 14, at Strasbourg, arguing that the state is under an obligation stemming from Article 14 to avoid discrimination against them within the scope of respect for family life under Article 8(1). This chapter traces a movement at Strasbourg from eventual recognition of same-sex couples as ‘families’ to (qualified) recognition of their right to a registered partnership under Article 8. At present, a right of opposite-sex couples to choose a registered partnership under Article 8 has not been established. That is because, as this chapter explains, they can access formalisation of their union via marriage, as they can do in all Member States. The Strasbourg Court currently takes the view that the decision whether to enable such couples to have a choice between marriage and a registered partnership is within the margin of appreciation of the Member State. The Strasbourg jurisprudence in the area of registered partnerships takes a restrained stance, due to its reliance on finding a consensus in Member States on affording same-sex couples access to a means of formalising their union. A number of the decisions have arisen in the context of transsexual relationships, but the fact that part of the case law concerns transsexuals should not be allowed to obscure the analogies that are explicitly – and can be impliedly – drawn in it in relation to non-transsexual couples seeking to access registered partnerships. Thus, while the discussion below of necessity covers cases that on a superficial reading appear to be partially unrelated to access to registered partnerships, that is not in fact the case, as this chapter seeks to demonstrate. As this chapter concludes, at present the Strasbourg Court has demonstrated, partially via the vehicle of certain transsexual cases, that it is prepared to give some, qualified, support to acceptance of a positive obligation under Article 8 to introduce registered partnerships in Member States that have not so far introduced them.

This article evaluates certain recent changes in counter-terror law and policy in response to rising threats to security in recent years, often associated with the activities of supporters of ISIS or similar groups, or suspected supporters. A range of security concerns and policy strands led to the introduction of a number of new counter-terror measures in the Counter-Terrorism and Security Act 2015. This article does not set out to provide a comprehensive examination of the Act's provisions, but covers its extension of coercive non-trial-based measures aimed at terrorist suspects generally, but particularly at persons who have gone abroad to support ISIS or may seek to do so: the introduction of Temporary Exclusion Orders, excluding persons suspected of travelling to Syria to fight with ISIS from the UK temporarily, travel restrictions, and the strengthening of TPIMs a form of ‘light touch’ control order. This article considers, in the aftermath of the November 2015 Paris massacre, the roles to be played by the new and planned measures in terms of increasing security, and the extent to which their design has also been influenced by the ECHR, taking account of relevant jurisprudence under the Human Rights Act and at Strasbourg.

Non-trial-based measures, in particular executive detention, have at various times been resorted to by democracies as part of their counter-terror strategies. Western democracies are facing an unprecedented rise in ‘home-grown’ terrorism; the threats they currently face come mainly from their own citizens. Non-trial-based measures—control orders, TPIMs and now temporary exclusion orders—have been designed to test the limits of human rights’ law, in particular of the substantive rights to liberty, freedom from torture or inhuman or degrading treatment, and to private life, but to seek to avoid violating them. But in so doing, they have tended to rely on a minimising recalibration of such rights, since the choice has been made not to accompany the measures with derogations, after a derogating measure, detention without trial, for use only against non-citizens, was found to breach aspects of the ECHR in 2004. Post-2005 reliance on more repressive non-trial-based measures that would clearly or possibly have necessitated a derogation has been accepted by Parliament, but not so far actioned. As has been pointed out many times, reliance on such measures, as a recourse running alongside the criminal process, tends to undermine the moral legitimacy of the use of state power as compared to the claims of terrorists and represents a departure from expected and assumed adherence to constitutional values in a democracy. The unease with which democracies approach the use of such measures, especially against their own citizens, is the subject of this paper, which focuses on their use and underuse over the past ten years in the UK. It argues that the desire to maintain constitutionality while protecting security creates compromises which mean that use of such measures satisfies neither objective: a cycle arises within which a more repressive iteration of the measure is introduced unaccompanied by a derogation, necessitating a recalibration of rights to accommodate it, combined with executive self-restraint in deploying it; human rights-based court and Parliamentary decisions then ‘ameliorate’ the measure and normalise it, but at the same time arguably diminish its efficacy and it falls further into dis-use; security concerns then demand the reintroduction of a more repressive iteration of the measure, threatening to restart the cycle.

This article evaluates two significant methods of protecting private information in the UK – via actions under the tort of misuse of private information, and via press regulation. As the Leveson Report has recently found, parts of the press have systematically abused their power, in terms of acquiring and publishing personal information non-consensually. Thus, as the Report found, it appears that the system of press self-regulation has been shown to be ineffective. The article considers the Leveson proposals for an improved system of press regulation and the current proposal of a Royal Charter. It suggests that, ideally, press regulation could work alongside the tort, tending to encourage press restraint, obviate the need for court action, and providing a remedy for those not willing or able, due to lack of resources, to go to court to seek a remedy for privacy invasion. The history of press self-regulation indicates that those results may not be achieved, but it will be argued that the current response to the Leveson Report in the form of a Royal Charter suggests otherwise.

This article considers the transition in 2012 from control orders to more ECHR-compliant ‘terrorism prevention and investigation measures’ under the Terrorism Prevention and Investigation Measures Act 2011. It argues that the interaction between security and liberty over the post 9/11 years has the appearance of a dialogue between courts and the executive that has resulted in a diminution in the repressive character of non-trial based preventive measures. But such an impression, it will be contended, is obscuring the recalibration of ECHR rights that has occurred, easing the path to the introduction of the enhanced version of TPIMs, under the Enhanced Terrorism Prevention and Investigation Measures Bill. The proposed ETPIMs exhibit many of the objectionable features of control orders and are currently ready to introduce if the threat level rises.

The creation of a tort of invasion of privacy aimed at the protection of personal information against media intrusion filled one of the most serious lacunae in English law. Described by the Law Commission as ‘a glaring inadequacy’,2 and condemned by the Court of Appeal,3 dicta in a pre-Human Rights Act 1998 (HRA) decision of the House of Lords4 remarked upon ‘the continuing, widespread concern at the apparent failure of the law’ in this area.5 That failure was remedied under this largely HRAdriven legal development although, as this chapter will argue, recent developments in 2012-15 have undermined the efficacy of the tort in practice to an extent. It must also be borne in mind that, as the House of Lords stated in Wainwright v Home Office,6 there is no general, comprehensive tort of invasion of privacy, reaching far beyond protection for private information.7

This note explores the nature and use of moated sites within the Humber lowlands and places them within current debates on seigneurial residences and landscapes within the medieval period. It will highlight the different ways in which moated sites were used, and emphasise that monocausal explanations are unsatisfactory tools for understanding moat construction.

The paper considers a key counter-terror strategy in the UK post-9/11 – the shift from a criminal justice response to the creation of a parallel preventive system running in tandem with the continuing criminal justice one. The preventive response does not rely on the commission of criminal offences or adherence to ordinary criminal justice safeguards. This preventive strategy relies on targeting terrorist suspects – those who, it is thought, may in future commit terrorist acts – and curtailing their liberty with the aim of preventing terrorist activity before it occurs. Since 2005 the preventive strategy has partly relied on the imposition of control orders on certain terrorist suspects; such orders are about to be replaced by Terrorism Prevention and Investigation Orders (TPIMs) at the end of 2011. Both types of order create a means of controlling or curbing the liberty of such suspects without a criminal trial. The paper evaluates the responses of the courts to control orders, and the reasons for their ...

Concerns have been raised that counter-terrorism laws and policies are increasingly alienating Muslims, especially young people and students, and that counter-terrorism measures may themselves feed and sustain terrorism. This paper relies on extracts from a report on this issue commissioned by the Equality and Human Rights Commission to develop and deepen understanding of the impact of counter-terrorism legislation and policies in general, and on Muslim communities in particular. Building on existing studies, this report contributes to the research and wider public discussion of this matter through an examination of the experiences of counter-terrorism legislation and policies on Muslim communities in four local areas across Britain and interviews with practitioners and officials at a national and local level. The areas focused on relate in particular to various uses of technology to further counter-terror strategies and the reaction to them of those interviewed.

9/11 re-shaped the counter-terrorist response in the UK. After 9/11, the ‘war on terror’ was viewed, as ‘not a matter of choice but a strategic imperative’.1 Thus, the response has been heavily inf...

An Extraordinary Threat Requiring Special Measures’ One of the most notable aspects of the ‘war on terror’ post 9/11 has been the shift from a wholly criminal justice response under the Terrorism Act 2000 to the creation of a parallel preventive system running in tandem with the continuing criminal justice one, a system that does not rely on the commission of criminal offences or on adherence to ordinary criminal justice safeguards. Clearly, it is not only in respect of preventive measures that international human rights norms may be downgraded – that is the case in respect of normal criminal justice measures too, but it is in respect of preventive measures that the tension with the rights tends to be at its most severe. The use of such extraordinary measures has been justified by Tony Blair on the basis that ‘the struggle’ against terrorism is ‘a new type of war’, demanding a ‘different attitude to our own interests’.1 The threat of suicide bombing was not a hallmark of previous terrorist conflict; it has been presented, and appears to be publicly perceived, as something peculiarly sinister and more threatening than past forms of terrorist activity,2 perhaps because the would-be bomber has put him or herself outside the realm of rationality and deterrence. The argument then – which Colm O'Cinneide has dubbed the ‘siren song of dreadful necessity’3 – is, paradoxically, that due to the extreme nature of the threat to civilised values, there is a greater need than in the past to abandon human rights standards. This article's concern is with such abandonment in relation to the preventive strategy represented by the use of control orders. The Preventive Strategy The preventive strategy4 adopted in response to the idea of an extreme threat relies on targeting possible terrorist suspects – persons who may in future commit terrorist acts, …

Reviews of Paul T. Nicholson. Brilliant things for Akhenaten: the production of glass, vitreous materials and pottery at Amarna Site O45.1 (Egypt Exploration Society Excavation Memoir 80). x+394 pages, 168 illustrations, 15 tables, CD-ROM. 2007. London: Egypt Exploration Society; 978-0-85698-178-4 hardback £65. - Pamela J. Rose. The Eighteenth Dynasty pottery corpus from Amarna (Egypt Exploration Society Memoir 83). 301 pages, numerous bw 978-0-85698-179-1 paperback £65. - Fran Weatherhead. Amarna Palace paintings (Egypt Exploration Society Excavation Memoir 78). xxiv+386 pages, 182 figures, 67 bw 978-0-85698-166-1 hardback £60. - Fran Weatherhead & Barry J. Kemp. The Main Chapel at the Amarna Workmen's Village and its wall paintings (Egypt Exploration Society Memoir 85). 424 pages, numerous bw 978-0-85698-186-9 paperback £65.

Three standard governmental policy responses to terrorism have been identified: a military one, treating the fight against terrorism as a form of warfare; a police-based one, treating it simply as a form of criminal activity, to be detected and then defeated using (perhaps some modified version of) the criminal justice system; and a political one, viewing it as a form of armed rebellion to be resolved through negotiation and the political process. All three responses to terrorism may be evident in any particular instance.

This article argues that resistance to the Human Rights Act has built up in the context of disputes relating to children and that such resistance is founded in the attachment of the courts to the welfare or paramountcy principle as currently conceived-the principle that the child's welfare automatically prevails over the rights of other family members. It argues that the failure to take account of Conven- tion arguments could only be a legitimate stance if there was no conflict between the demands of the welfare principle and those of the Convention guarantees, but that in fact the approach of the European Court of Human Rights differs considerably from that of the UK courts since it seeks to balance the rights of different family members. The article goes on to argue that, taking account of the Strasbourg stance and of the already established domestic recognition of the presumptive equality of competing qualified Convention rights, it is time to accept the adoption of a new model of judicial reasoning in the context of disputes over children-the 'parallel analysis' or 'ultimate balancing act'.