Deportation of Suspected Terrorists with ‘Real Risk’ of Torture: The House of Lords Decision in Abu Qatada1

This note discusses the House of Lords' decision in RB (Algeria) (FC) and another v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department that the real risk of third‐party foreign torture evidence does not meet the required standard of unfairness so as to prevent the deportation of suspected terrorists under Article 6 ECHR. It considers three key issues that were raised by this case: Parliament has deliberately restricted the right of appeal from SIAC to the Court of Appeal on questions of fact; the procedure of using closed material by SIAC in the assessment of safety on return is unequivocally permitted by statute; and the conclusions by SIAC that diplomatic assurances contained in Memoranda of Understanding do not give rise to points of law and, therefore, are beyond review by the appellate courts.     

The Digital Economy Act 2010: subscriber monitoring and the right to privacy under Article 8 of the ECHR

This paper critically assesses the compatibility of s3 Digital Economy Act 2010 (DEA) with Article 8 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Ofcom’s Initial Obligations and two UK cases, namely: British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills,¹1 British Telecommunications Plc & Anor, R (on the application of) v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin).View all notes and R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others.²2 R (British Telecommunications plc and TalkTalk Telecom Group plc) v Secretary of State for Culture, Olympics, Media and Sport and others [2012] EWCA Civ 232.View all notes It argues that the implementation of this obligation allows directed surveillance of subscribers’ activities without legal authorisation under the Regulation of Investigatory Powers Act 2000 (RIPA). It also analyses compliance with the Strasbourg Court’s three-part, non-cumulative test, to determine whether s3 of the DEA is, firstly, ‘in accordance with the law’; secondly, pursues one or more legitimate aims contained within Article 8(2) of the Convention; and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that unless the implementation of s3 of the DEA required the involvement of State authorities and was specifically targeted at serious, commercial scale online copyright infringement cases it could infringe part one and part three of the ECtHR’s test, thereby violating subscribers’ Article 8 ECHR rights.     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

Foreign Acts of Torture and the Admissibility of Evidence: The Judgment of the House of Lords in A and Others v. Secretary of State for the Home Department (No. 2)

The author discusses, from the point of view of internationalhuman rights law, the judgment of the British House of Lordsin A and Others v. Secretary of State for the Home Department(No. 2), which held that statements obtained by torture couldnever be admissible in evidence. The judgment is concluded tobe fully consonant with international law and to provide anexcellent example for other courts faced with this highly topicalquestion.     

Mixed Messages in Bottles: the European Union,Devolution, and the Future of the Constitution

An unprecedented eleven‐member UK Supreme Court decided R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. The Government's argument, that it could start the process of withdrawing from the EU using a prerogative power instead of an Act of Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also secured a unanimous verdict that it did not need the consent from the devolved legislatures in Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Brazilian judges in-between professionalism,gender and difference

This paper analyzes how Brazilian judges experience difference, focusing on how professionalism, gender, generation and diversity intersect in identity formation among women and men who are judges in the state of São Paulo, Brazil. In attempting to avoid attaching one fixed meaning to the concept of difference, we work with Avtar Brah's typology; this in turn enables us to capture how difference is perceived and experienced by our interviewees. Our results provide a look at how the specificities of the professionalization process influence the composition of the two courts we have studied (one at state and another at federal level), and how they increase or reduce the gender stratification within these careers. Being a judge is experienced through difference, in particular as the ‘Other' to those outside the career, and wherein identification is intersected by questions of gender, sexuality and generation. Although professionalism establishes boundaries between ‘us' and ‘them', it is also diluted through the ways in which the above-mentioned social markers and attributes permeate the self and professional groups. We interviewed 18 judges (women and men) from the São Paulo State Courts (Tribunal de Justiça de São Paulo) and 10 judges from the Regional Federal Courts (Tribunal Regional Federal) from the São Paulo circuit.     

Equal Civil Partnerships,Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development

In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. In a strikingly robust and, at times, acerbic manner, the Court systematically dismantled the Secretary of State's request for tolerance of a discriminatory and unsustainable legal position. The decision represents a clear victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later announcement by Prime Minister Theresa May in October 2018 that different‐sex civil partnerships will ultimately be introduced in England and Wales.     

Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR

Through case-law research, this paper critically assesses the compatibility of the Digital Economy Act 2010 (DEA) subscriber appeal process provisions (Section 13 of the DEA) with Article 6 of the European Convention on Human Rights (ECHR). Drawing on the European Court of Human Rights (ECtHR) case-law, Ofcom's Initial Obligations Code (the Code), and the DEA judicial review decision, namely, BT PLC and Talk Talk PLC v Secretary of State for Business Innovation and Skills and others, this paper focuses on the three Strasbourg Court principles of equality of arms, admissibility of evidence, and presumption of innocence, in an effort to determine whether Section 13 of the DEA infringes them, and whether this constitutes a breach of a subscriber's right to a fair trial under Article 6 of the ECHR. The paper examines these three ECtHR principles. It contrasts such principles with the Code's provisions, and considers the compatibility of Section 13 of the DEA with Article 6 of the ECHR. It concludes that the DEA subscriber appeal process provisions do indeed infringe these principles, thus constituting a violation of subscribers' right to a fair trial. It also recommends that the UK government start taking seriously human rights in general, and Article 6 of the ECHR in particular.     

CASES: Special Advocates,Control Orders and the Right to a Fair Trial

In Secretary of State for the Home Department v AF (No 3), the House of Lords decided that Article 6 ECHR requires a ‘core irreducible minimum’ of procedural fairness such that ‘the controlled person must be given sufficient information about the allegations against him to give effective instructions to the Special Advocate’. This case‐note will discuss the challenges facing Special Advocates in control order proceedings and the impact AF may have on the measure of procedural fairness owed to individuals in closed proceedings. It will also address the judicial use of sections 2 and 3 of the Human Rights Act 1998 in arriving at the outcome in AF.     

Grants to states for construction or acquisition of state home facilities--VA. Final regulations

The Department of Veterans Affairs (VA) is amending its medical care regulations, Grants to States for Construction or Acquisition of State Home Facilities (38 CFR part 17), to implement section 206 of the Veterans' Benefits and Services Act of 1988 enacted on May 20, 1988. This section changes from July 1 to August 15, the date on which VA will determine the priority of applications for construction or acquisition grants for State Extended Care Facilities for purposes of the priority list. Section 206 also provides the Secretary authority to conditionally approve an application and obligate funds for a grant is the Secretary determines that the State can meet all remaining Federal requirements within 90 days. At the same time, VA is updating the States home grant standards and veteran population of the various States set forth in these regulations. These revisions will assist the States in meeting deadlines for the priority list and subsequent grant awards.     

The ‘Heathrow’ Case: Polycentricity,Legislation, and the Standard of Review

The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision-making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under-analysed.     

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.     

Mavericks or misconstruction? A reply to Campbell and Allan

In a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.     

Delaney and the Motor Vehicle Insurance Directives: lessons for the teaching of EU law

A recent series of cases relating to the EU Motor Vehicle Insurance Directives and their application in the UK makes for interesting reading. It is the UK’s negligent transposition, and a lack of knowledge and awareness by lawyers and judges in the cases of the interaction between domestic and EU law, which compounds the negative effects. The issues raised in Delaney v Pickett [2011] and Delaney v Secretary of State [2014] do not just generate concern as to the implications they have for the application of EU law principles, but have resonance with the way in which EU law is taught in many universities. In this article we suggest that reconsidering the method and purpose of EU teaching may better serve the EU-lawyers needed for the future.     

Al Rawi,Tariq, and the Future of Closed Material Procedures and Special Advocates

This note considers the impact of the Supreme Court's decisions in Al Rawi v The Security Service and Home Office v Tariq on the use of closed material procedures and special advocates. The government's subsequent Justice and Security Green Paper is also discussed.     

Government Companies as Regulators

In 2016 the government established a new sectoral regulator, with power to grant and withdraw licences, set performance standards, and impose sanctions, not as a statutory authority but in the form of a company wholly owned by the Secretary of State: the Oil and Gas Authority.  This article critically examines this and other uses in the UK of government‐owned or ‐ controlled companies to discharge public regulatory functions, against the background of current government practice regarding arm's length public bodies in general and government companies in particular. It assesses the acceptability of the company form by reference to criteria of democratic control, independence and accountability of regulatory institutions.     

Deportation, Detention and Medical Intervention

In the UK the foreign national prisoners who have breached immigration rules suffer deprivations from which the ordinary citizens are exempt. Their subjection to prison regimes often on pain of deportation leads to psychological illnesses that cause them long term damage. The deportation regime that arises by default under the Border and Immigration Act 2007 has made it difficult to avoid prison for the breach of immigration rules. The research published by NACRO shows that it can lead to trauma because there is duress accompanied by an uncertainty of fate. The decision by the Court of Appeal in R (Medical Justice) v Secretary of State for the Home Office (2011) has brought this issue of deporting ill patients into the limelight. There are expert reports that reveal that those foreign nationals who are refused permission to stay are at risk from psychiatric illnesses when they are detained. The findings are that the mental illnesses are particularly severe in the most vulnerable prisoners who develop symptoms of long term mental disease. It is critical for the medical professionals to consider their involvement at an early stage when they will be able to supervise and diagnose illness before there is damage. This is particularly the case as the NHS treatment is denied to prisoners who are foreign nationals which is makes it necessary to implement a strategy with local agencies to prevent the onset of debilitating illnesses.     

Attribution in Company Law

In Bilta (UK) Ltd (in liquidation) v Nazir (No 2), the Court of Appeal held that the ex turpi causa defence was inapplicable by refusing to attribute the fraud of the directors and the sole shareholder to the company in connection with the company's claim against them and third party co‐conspirators. It is significant that the court has not only clarified the law in relation to attribution, but it did so by rejecting the majority's reasoning and endorsing the dissenting judgment in the House of Lords decision in Stone & Rolls (in liquidation) v Moore Stephens (a firm). This article evaluates the decision in Bilta by critically examining the fundamental principles and policies that apply to the three distinct circumstances under which corporate attribution should or should not take place.     

RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998

In RR v Secretary of State for Work and Pensions – follow-on litigation from the high-profile bedroom tax cases – the Supreme Court handed down a judgment which has significant implications for social security law, the interpretation of the Human Rights Act, the tribunals system, the judicial control of delegated legislation, and access to justice. Central, however, was the issue of the enforceability of human rights. We argue that the Supreme Court was not only justified in its interpretation of the Human Rights Act but that it has made the protections of the Act more easily enforceable.