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7 Cards in this Set
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Hirst v United Kingdom (No 2) => prisoners’ voting rights |
response of successive governments to controversial decision of ECtHR in Hirst v United Kingdom (No 2) (App no 74025/01) has been slow and deeply hostile. Just before time limit set by court, in November 2012, government published a draft Bill for pre-legislative scrutiny, as unenthusiastically as possible. This was Voting Eligibility (Prisoners) Draft Bill upon which Joint Committee published its Report in December 2013. |
Prisoners’ voting rights |
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Ghaidan v Godin-Mendoza (2004) |
In Ghaidan v Godin-Mendoza (2004) a dispute arose over whether the words in para.2(1), Schedule 1 to Rent Act 1977 relating to right to succeed on death to a statutory (protected) tenancy (i.e. ‘a person who was living with original tenant as his or her wife or husband’) could be interpreted under s.3 of the HRA to include deceased tenant’s same-sex partner. majority of HL ruled that it could be interpreted to include the same-sex partner. => Fitzpatrick v Sterling Housing Association (2001) had set a precedent in HL ruling that a same-sex partner could not inherit their deceased partner’s tenancy => Civil Partnership Bill (now Civil Partnership Act 2004) gives same-sex couples who had not entered into civil partnerships same rights as unmarried heterosexual couples. This reinforced Lord Millett’s view that Parliament should make crucial changes to social policy through legislation and not courts.
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Tenancy in lease going to same-sex partner upon death of tenant |
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Chahal v UK (1996) |
European Court of Human Rights (ECtHR) case Chahal v UK (1996) had provided that UK government could not deport a suspected Sikh terrorist to India because there was a real risk that he would be attacked and killed by Indian police. Independent evidence was produced to indicate that a breakdown of human rights in India had indeed occurred and Article 3 was used successfully to prevent suspect’s forced return to India. Effect of Chahal: Taking advantage of derogation order discussed at Section 20.1 (under ECHR?), government passed Anti-terrorism, Crime and Security Act 2001 (ATCSA), which allowed foreign nationals to be detained indefinitely once Home Secretary had certified them as suspected international terrorists who could not be deported because of case of Chahal. Provision was made for extremely limited appeal rights to controversial Special Immigration Appeal Commission (SIAC) and, ultimately, to CA. |
Indefinite detaining of foreign national terrorist suspects |
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Development of anti-terrorism legislation |
Anti-terrorism, Crime and Security Act (ATCSA) 2001 -> Prevention of Terrorism Act 2005: control orders -> Terrorism Prevention and Investigation Measures Act (TPIM) 2011 -> Counter-Terrorism and Security Act 2015 (further amendments to operation of TPIMs) -> Counter-Terrorism and Border Security Act 2019 (amended Terrorism Act 2000) |
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R (on the application of Begum) v Head Teacher and Governors of Denbigh High School (2006) |
In R (on the application of Begum) v Head Teacher and Governors of Denbigh High School (2006), HL considered a controversial and well-publicised case in which a Muslim schoolgirl from Luton claimed her right to manifest her religion under Article 9 of ECHR and to receive an education had been infringed. The core area of dispute lay in her wish to wear a form of dress known as a ‘jilbab’ and her refusal to wear alternative Muslim dress known as a ‘shalwar kameez’. HL decided unanimously in favour of school, although only three of five judges held that applicant’s freedom under Article 9 had not been breached. other two judges – Lord Nicholls and Baroness Hale – indicated that they thought that there was a breach but that interference was justified. Lord Bingham thought that CA’s focus on procedure, following traditional judicial review approach, was inadequate. court was required to make a value judgment and, in his opinion, school had not acted disproportionately. |
Muslim schoolgirl wished to wear a form of dress known as a ‘jilbab’ and refused to wear alternative Muslim dress known as a ‘shalwar kameez’. |
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A v Secretary of State for Home Department [2004] (HL) => Part 4 of Anti-terrorism, Crime and Security Act 2001 (ATCSA 2001) |
This is one of most crucial human rights cases -> it was heard by nine judges. appellants, who were all suspected foreign national terrorists detained indefinitely under Part 4 of ATCSA 2001, were successful in HL which held: a. there was a public emergency threatening life of nation b. powers of detention under ACTSA 2001 were not proportionate c. ACTSA 2001 discriminated against foreign terrorist suspects, as opposed to British terrorist suspects. There were three main issues raised by appellants: a. HL held by 8:1 that there was such a public emergency threatening life of nation, as required for derogation order to be legal. b. HL held by 7:1 (Lord Hofmann expressing no view) that requirement that powers of detention under s. 23 of ATCSA 2001 were proportionate – ‘strictly required by the exigencies [necessity] of the situation’ had not been met. c. HL held by 7:1 (Lord Hofmann expressing no view) that detention powers under s.23 of ATCSA 2001 did discriminate unjustifiably against foreign terrorist suspects compared to UK nationals who were suspected terrorists. Lord Hoffmann did not express a view on issue of whether the fact that legislation was confined to foreign terrorists was ‘irrational and discriminatory’ because he did not want to suggest that an objectionable measure could be made legal simply by inflicting it on UK citizens as well. Lord Hoffmann’s criticism of government: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” => Effect of A v Secretary of State for Home Department (2004): Prevention of Terrorism Act 2005 was a swift government response to this case and introduced a new regime of control orders to replace Part 4 of ATCSA 2001. Two types of control orders were introduced. 1. Derogating control orders which would derogate from Article 5 2. Non-derogating control orders purported to be compatible with Article 5 |
appellants were all suspected foreign national terrorists detained indefinitely under Part 4 of ATCSA 2001 |
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A, D and C v Secretary of State for the Home Department [2005] (HL) => Part 4 of Anti-terrorism, Crime and Security Act (ATCSA) 2001 |
Central question which HL had to decide: When hearing an appeal under s.25 of Anti-terrorism, Crime and Security Act 2001 by a person certified and detained under ss.21 and 23 of that Act, may Special Immigration Appeals Commission (SIAC), a superior court of record established by statute, receive evidence which has or may have been procured by torture for purposes of obtaining evidence, carried out by officials of a foreign state without complicity of British authorities? Article 3 of Torture Convention states: a. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Secretary of State said reason for use of evidence which may have been obtained using torture was that less progressive’ countries might cease to supply intelligence and evidence if there was intrusive inquiry into their methods. Held: 1) Appeal allowed. Although SIAC (Special Immigration Appeals Commission) might admit a wide range of material which was inadmissible in normal judicial proceedings, express statutory words would be required to override exclusionary rule barring evidence procured by torture; that wording of rule 44(3) of Special Immigration Appeals Commission (Procedure) Rules 2003 could not be interpreted as authorising displacement of that rule and that, accordingly, Commission could not admit such evidence. 2) Lords Bingham, Nicholls and Hoffmann held the minority view that in cases where there was doubt about whether or not the evidence was obtained by torture, SIAC (Special Immigration Appeals Commission) should refuse to accept evidence. This was rejected by majority, who held that such evidence may be admitted provided that they bear their doubt in mind in evaluating the evidence. Only if it can be established on a balance of probabilities that the information relied on by Secretary of State was obtained by torture, commission should decline to admit the material. |
Should evidence procured by torture be allowed in appeals before the SIAC? |
