HUMAN RIGHTS

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UK courts are following European court of human rights rulings too strictly and should adopt a more critical approach towards Strasbourg, according to Britain's two most senior judges. Lord Phillips, the president of the supreme court, and Lord Judge, the lord chief justice, struck a note of judicial Euroscepticism while appearing before a parliamentary committee. The automatic right of appeal to the ECHR should be replaced with a requirement that permission must be obtained before individuals' cases can proceed to Europe, they suggested.

Their comments, before the joint committee on human rights, come as the government seeks to transform Britain's judicial relationship with the ECHR and tackle the Strasbourg court's huge backlog of cases. Both Phillips and Judge agreed that the court did not allow sufficient leeway, what is technically known as the "margin of appreciation", in interpreting general human rights principles in the context of domestic legislation. They were both asked by the Lib Dem peer Lord Lester whether UK courts have been too strict in following ECHR case law.

Phillips said, "We have a tendency to be too strict. We pay great attention to the decisions and rulings of higher UK courts. That's what we are used too and sometimes we do it too much. Perhaps we analyse it in too much detail." Judge said, "We have approached a lot of the decisions of the European court system in the manner we would approached a decision of our own court. I think we have not been sufficiently flexible. Most of the decisions in the ECHR are not dealing with principles they are dealing with facts and that's not a precedent for anything."

He added, "There's been a tendency to follow much more closely than we should. I think judges are generally aware of this and are examining the decisions of the ECHR much more carefully to see whether they are just looking at facts or principle." The backlog in cases before the Strasbourg court was also criticised. "They have 165,000 cases outstanding at the ECHR and that makes inevitably for an incredibly inefficient system," Judge said. Any appeal by individuals to the ECHR should, therefore, require permission for it to proceed. The court should deal only with points of broad principle not individual facts that do not raise points of legal interpretation, he implied.

Article 8 of the human rights convention, which guarantees a right to family life and privacy, was baffling for judges to interpret, Lord Phillips admitted. He said, "Article 8 is one that Strasbourg has developed very significantly over the recent years. We have been following Strasbourg down that path and some would say we have gone a little bit ahead, and they would be right. Article 8 is one of the most difficult issues we happen to be faced with. It's very difficult to pin down what is meant by Article 8." Judge warned that parliament should be aware of the consequences of the EU as a body acceding to the European convention which would result in the ECHR decisions becoming fully binding on all member states instead, as he believed, only requiring UK courts to "take account" of such rulings. (Source: The Guardian, Nov/11)

The Home Office's ability to deport individuals who have committed crimes may be curtailed by a European court judgment banning the removal of a Nigerian man convicted of rape. The Strasbourg court ruled that the man, known as AA, would have his right to family life "violated" if he was sent back to Nigeria. He lives with his mother, a nurse, in England. In its finding, the court declared, "The applicant's deportation from the United Kingdom would be disproportionate to the legitimate aim of the 'prevention of disorder and crime' and would therefore not be necessary in a democratic society."

How much of a precedent the case will set was not immediately clear. The man was convicted of rape at the age of 15 but parole reports showed he had responded "positively" to rehabilitation and was subsequently deemed to pose a low risk of reoffending. Welcoming the decision, the Aire Centre, the legal centre which took the case to the European court of human rights, described it as a "resounding victory". The young man has obtained both undergraduate and postgraduate degrees in the UK since leaving school, it said.

A spokeswoman added, "There has been the most spectacular rehabilitation of a juvenile offender. The blanket approach [to deportation] taken by the UK was totally inappropriate." The Home Office did not comment immediately on the judgment. Last year about 5,000 "foreign national criminals" were deported from the UK at the end of their sentences. In its judgment, the court explained, "The fact that the applicant was a minor when he committed the offence does not preclude his deportation given the seriousness of the offence in question."

It added, "But that consideration must be carefully weighed against the applicant's exemplary conduct and, as the evidence before the court demonstrates, commendable efforts to rehabilitate himself and to reintegrate into society over a period of seven years. In such circumstances, the UK government are required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his deportation necessary in a democratic society. However, the government have neither cited other relevant concerns nor submitted any documents capable of supporting such a contention." (Source: The Guardian, Sep/11)

Human rights judges have ruled that the Government cannot deport "undesirable" or "dangerous" immigrants who may face ill-treatment at home, however bad their crimes in the UK. In a test case ahead of more than 200 similar actions pending against the UK, the Strasbourg judges decreed that the UK's duty to protect people against torture or inhuman treatment is "absolute". The case involved two Somalis facing enforced return to Mogadishu after receiving convictions in the UK for serious criminal offences. The European Court of Human Rights awarded Abdisamad Adow Sufi and Abdiaziz Ibrahim Elmi, both currently in UK immigration detention centres, £13,000 and £6,700 respectively for costs and expenses in bringing the case.

Sufi claimed asylum in the UK in 2003 on the grounds that he belonged to a minority clan persecuted by Somali militia. His account was rejected as not credible and asylum refused. Elmi arrived in the UK in 1988 and was granted leave to stay as a refugee in 1989, renewed indefinitely in 1993. After convictions for a number of serious criminal offences, including burglary and threats to kill in Sufi's case, and robbery and supplying class A drugs cocaine and heroine in Elmi's case, they were issued with deportation orders. Their UK appeals that they risked being ill-treated or killed if returned to Mogadishu were rejected.

The European Court of Human Rights blocked their deportation pending a hearing of their appeals to the Strasbourg court. The seven-judge court has now ruled unanimously that deporting them would breach the Human Rights Convention Article 3 which bans "inhuman or degrading treatment". The ruling said, "The court reiterated that the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victims' conduct. Consequently, the applicants' behaviour, however undesirable or dangerous, could not be taken into account." (Source: Daily Express, Jun/11)

Comment:
So why do we elect a Government when the EU makes all the rules? Is this one of the "benefits" of belonging to the EU? How many other EU states would comply with such a ruling?

Heroin smuggler Amir Ali refused to leave the comfort of his cell for an appearance at Lewes Crown Court because he was afraid of losing it to another prisoner. Judge Richard Hayward said, "I didn't know that prisoners could choose whether or not to come to court. I just assumed they would be scooped up by a burly prison warden and dumped in the back of a van. Now I hear this prisoner is refusing to leave his cell, and no-one's doing anything about it. Once again, it's down to barking mad human rights rules."

Julian Woodbridge, defending, said, "Mr Ali refused to leave his cell this morning because he is comfortable there and doesn't want to lose it. There is a shortage of comfortable prison cells in this country, so he was obviously keen to hold on to his." A court insider said, "It's incredible that this drug dealer finds his cell so comfortable he doesn't want to leave it. If they make prison that easy then it is no surprise the jails are full up. To claim your human rights are being infringed by being brought to court from your prison cell is really the final straw." (Source: Daily Mail, Jan/08)

The elderly residents of private care homes do not have the human rights of prisoners. Five Law Lords came to this conclusion when they ruled that old people in independent care homes are not subject to the Human Rights Act. The ruling, which will affect 300,000 pensioners across the country, leaves people in these homes more vulnerable to neglect and abuse because, unlike hospital patients, council tenants or prisoners, they are not protected by human rights laws.

Age Concern described the decision as "a catastrophe" and Help the Aged said it was "a sickening blow to older people". Civil rights group Liberty said it was a "bonkers" decision which put the profits of care home owners before the needs of their clients. The Disability Rights Commission said the ruling was "perverse", while the British Institute of Human Rights said, "The House of Lords has undermined the fabric of human rights protection in the UK."

When drafting the Human Rights Act in 1998, Ministers said it should apply to all public bodies. But they left a loophole by failing to include private sector care homes, which make up nine out of ten care homes, even when the person is paid for by a local authority. The Law Lords argued that the existing laws governing standards of treatment in care homes should be sufficient.

A spokesman for Southern Cross Healthcare said, "The fact that the House of Lords has decided that private care providers should not be public bodies for the purposes of the Human Rights Act does not in any way deflect from our determination to ensure that the privacy, dignity and safety of all our service users is protected at all times and Southern Cross as a company remains committed to that aim."

Elderly people living in privately-run care homes are currently protected by the Care Standards Act 2000, which sets out minimum standards of care. However, campaigners claim that this Act does not cover all potentially abusive or negligent situations. Crucially, it does not prevent a care home from evicting a resident. Care home staff are also subject to the normal criminal laws prohibiting physical or mental abuse of an elderly person. (Source: Daily Mail, Jun/07)

Labour's plan to make pubs and clubs pay for any disturbance they cause has been shelved. Alcohol Disorder Zones (ADZ) will be used only as a "last resort" as they risk breaching human rights laws. Ministers previously said that forcing licensed premises to pay up to £100 a week for extra policing was vital to curb the negative effects of 24-hour drinking. Police would actually lose out financially from an idea that was supposed to spare them from picking up the bill for binge-drinking and drunken violence.

The Police Federation vice-chairman Alan Gordon said, "If it is this bureaucratic and burdensome, police will never use these zones or attempt to use them. The Government made great play of the additional powers they were going to give the police. To make them so bureaucratic they are nearly impossible to use is being deceitful in what was involved in 24/7 drinking in the first place." Ministers promised the zones in January 2005 but the Home Office now says it has to be careful that human rights laws are not breached. Zones must be declared only in extreme circumstances where all other options had failed, its says.

They warned that charging a pub, club or off-licence for disturbance amounts to an interference with property rights under the European Convention on Human Rights. Police must first give drinkers on-the-spot fines or ban louts from town centres. They must also make attempts to close down any problem pubs using the Licensing Act. If this fails, they must amass evidence that a street or "zone" is blighted by binge-drinking. Officers would have to produce details of violent incidents, relevant A&E notes and a CCTV incident log. Once this so-called "trigger stage" is complete, pubs and clubs must be given a 28-day consultation period when they can object to the plans.

While this is taking place, police and local councils must draw up an Action Plan of steps they want the premises to take to reduce the misery they are inflicting on local residents. Pubs are then given eight weeks in which to introduce these changes. It is only if police and councils can prove the Action Plan has been ignored that they can declare an Alcohol Disorder Zone and levy charges. Restaurants and hotels have also been exempted from the possibility of being charged. This is despite some restaurants being used by drinkers to secure alcohol late into the night. (Source: Mail on Sunday, Apr/07)

An Al Qaeda suspect linked to Osama bin Laden has pocketed nearly £9,000 of taxpayers money due to human rights laws. Chiefs in the UK and America believe Mohammed al-Ghabra is a key player in an international "pipeline" that smuggles British Muslims into Iraq to fight our troops there. They also claim he helps terror chiefs send Brits to al Qaeda training camps where they learn how to carry out atrocities when they return home.

Al-Ghabra, who lives with his mum in Forest Gate, East London, denies any involvement in terrorism but had his assets frozen by the Bank of England and Whitehall immediately axed all his state benefits, thought to total more than £170 a week in housing benefit and job seeker's allowance. But now the Treasury has been forced to reinstate the handouts of taxpayers' cash after the United Nations warned his "human rights" were being breached. (Source: Sunday People, Jan/07)

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