JUSTICE STUDENT HUMAN RIGHTS NETWORK
CONTENTS
WELCOME
Welcome to the JUSTICE Student Human Rights Network e-bulletin for Spring 2008.
Thank you to all those who attended our first major conference for the network in March - following the success of this event we have been busy looking to the future and planning the development of the network - more details are below and we will be organising more events for the next academic year.
This edition of the bulletin contains a briefing note on the Regulation of Investigatory Powers Act 2000, a case note about the compatability of mental health legislation with the European Convention on Human Rights, and an interview with Jonathan Cooper OBE, a barrister at Doughty Street Chambers.
The bulletin concludes with ways you can get involved - one of which being the JUSTICE summer internship programme (this year open to law graduates only due to the nature of the work involved in the internship. This includes people who expect to have completed a law degree or conversion course by the time they start their internship). The closing date is this Friday - 9 May 2008 - for more details click here.
We hope you
enjoy this edition of the JUSTICE Student Human Rights Network e-bulletin
and as ever welcome your feedback - please email jshrn@justice.org.uk
with any comments or questions.
INTRODUCTION
From Suzanne
Lambert
Barrister and Member of JUSTICE Council and Executive Board
Chair of JUSTICE Student Human Rights Network project
As the weather finally begins to brighten we can all begin to look forward to summer. But many of you first have the hurdle of exams or that final period of training before qualification or tenancy decisions as the academic year comes to a close.
The close of the academic year also signals the end of the JUSTICE Student Human Rights Network's activities until the autumn term and we would like to take this opportunity to reflect on the achievements of the last few months as well as to set the stage for the upcoming academic year.
Apart from two of our usual Saturday seminars held at the Guardian newsroom at the beginning of the academic year, without a doubt the biggest achievement so far has been the major conference held in March that was kindly hosted at Freshfields Bruckhaus Deringer with the generous support of the College of Law and the Guardian. A grand total of 197 members turned up bright and early on a Saturday morning and, following an inspiring introduction from Geoff Nicolas, Partner at Freshfields, and an enlightening discussion about the Human Rights Act 1998 from Keir Starmer QC, participated in a number of break-out sessions on torture, the Iraq War, freedom of religion and freedom of expression, led by Roger Smith, Phil Shiner, and Dr Eric Metcalfe respectively.
Spurred on by the success of this year's major conference, we hope to repeat the formula next March to culminate the academic year's activities in a similar manner. We were greatly encouraged by the enthusiasm of all who attended and of course by the many new members who have joined the network and who have also chosen to become full student, pupil and trainee members of JUSTICE. Apart from the major conference, we are aiming to organise at least one additional special event for JUSTICE's student, pupil and trainee members.
However, we remain committed to growing the network and to providing a number of events and opportunities that will be available to the 1000+ members we now have on the network mailing list. Apart from these regular e-bulletins, the schedule of Saturday seminars will continue. The topics for the first two scheduled for the Autumn will be a beginner's guide to the Human Rights Act 1998 for new undergraduate students, followed by a more closely targeted seminar for postgraduates, pupils and trainees on a specific issue such as torture or freedom of information. If you have any ideas as to specific topics or you have a particular interest, as always we encourage you to get in touch. We cannot stress enough how much this network is meant to reflect your interests and cater to your needs.
We also hope to expand the network even more and to reward the many members who travel down to London for our seminars by arranging an event outside of London. We have been approached on a number of occasions by eager members who would like to arrange an event at the universities or organisations. We have listened and so do hurry and get in touch if you would like to co-host a seminar or event in the upcoming academic year. And of course, do get in touch even if simply to provide feedback or to provide any contributions to the website.
We look forward
to seeing you again in the Autumn and to welcoming any new members to
the network. In the meantime, good luck with exams etc and have a good
summer!
Email us
at jshrn@justice.org.uk or telephone
020 7762 6422 with any questions or comments
BRIEFINGS
Briefing: Regulation of Investigatory Powers Act 2000
What
is the Act about? What are the 'Investigatory Powers' it regulates?
The
Regulation
of Investigatory Powers Act 2000, or 'RIPA' as it is commonly known,
governs the use of covert surveillance by public bodies. This includes
bugs, video surveillance and interceptions of private communications (eg
phone calls and emails), and even undercover agents ('covert human intelligence
sources').
It's important to note that RIPA does not just cover surveillance by police
but also by other law enforcement bodies (eg the Serious
Fraud Office or the Serious Organised
Crime Agency), the security and intelligence services (MI5,
MI6 and GCHQ),
as well as a large number of other public bodies, including local government.
So
this is why local authorities have been able to use surveillance powers
in relation to school boundaries, disabled parking and alleged anti-social
behaviour?
Yes, the Act provides a detailed framework for surveillance activities,
although not everything understood as surveillance would be covered by
RIPA. As a general rule, RIPA governs active surveillance - actions interfering
with individual privacy that would normally be illegal if carried out
by a private individual, eg installing a listening device in someone's
house, but can be lawful because carried out for a legitimate governmental
purpose, eg detecting crime. It does not extend to other privacy technologies
such as databases or CCTV (except, for example, where the CCTV camera
was installed in such a way as to monitor a private home).
How does the Act work?
The Act distinguishes between interception of private communications and
communications data (Part
1), directed surveillance and instrusive surveillance (Part
2).
What's the difference between intercept and communications
data?
Interception of private communication (phone calls, emails, text messages,
faxes, etc) or 'intercepts' are the most sensitive kind of surveillance.
With few exceptions, interceptions are authorised under warrant by the
Home Secretary and anything obtained pursuant to a warrant - and the warrant
itself - is completely inadmissible in any legal proceedings. This is
because of the fears of MI5 and MI6 that using intercept evidence would
reveal too much about their interception capabilities.
'Communications
data' is different from intercept in that it is information about
a communication rather than its contents. For example, the record of your
phone provider that you called a particular telephone number on a particular
time and date is communications data. What was actually said as part of
telephone call would normally be covered by an intercept.
Okay, what's the difference between directed
and intrusive surveillance?
'Directed'
surveillance is surveillance that is conducted as part of a specific investigation
and carried out 'in such a manner as is likely to result in the obtaining
of private information about a person'.
'Intrusive'
surveillance is directed surveillance that involves either residential
premises, a private vehicle, or any kind of surveillance device. So, for
example, following a suspect down a street as part of an operation would
be directed surveillance. Planting a bug in someone's house, by contrast,
would be intrusive surveillance.
What kind of oversight is there for this?
Part 4 of the Act does provides for three commissioners: the Interception
of Communications Commissioner, the Intelligence
Services Commissioner and the Chief
Surveillance Commissioners. There is also an Investigatory
Powers Tribunal established to hear complaints related to surveillance.
Unfortunately, the Act is extremely complex and the kind of authorisation required and level of oversight available depends very much on the kind of surveillance: intercept, communications data, directed surveillance and instrusive surveillance. Generally speaking, the least instrusive kinds of surveillance are largely self-authorised by a senior member of the public body concerned, with after-the-fact scrutiny by the relevant commissioner. More instrusive surveillance requires the involvement of the Surveillance Commissioner but there is no prior judicial authorisation required for intercepts - the most intrusive kind of surveillance. Accordingly, the UK is judged to have one of the weakest systems of surveillance regulation of any EU or common law country.
Prior judicial authorisation? Why is that important?
In virtually every other common law country, eg United States, Canada, South Africa, etc - interceptions and bugs by law enforcement require a judicial warrant. This means that the police have to apply ex parte to a judge for permission before they can carry out surveillance. By contrast, an interception warrant under Part 1 of RIPA is granted by the Home Secretary.
The European Court of Human Rights has held that the right to respect for private life requires the law governing lawful covert surveillance to 'provide some protection to the individual against arbitrary interference with Article 8 rights'.[1] However, the fact that surveillance powers are now being employed in disputes about school boundaries suggests otherwise.
Coherent reform of surveillance powers in the UK would begin by requiring all kinds of surveillance to be authorised by an independent judicial authority, rather than elected (or in some cases even unelected) public officials.
Where can I get more information?
The Home Office - Surveillance section
The Office of the Surveillance Commissioners
The Investigatory Powers Tribunal
Footnotes
1
Halford v United Kingdom (1997) 24 EHRR 523 at para 49.
back up
Briefings form an important part of JUSTICE's work. To see all our current
work visit the In
The News section of our website.
CASE NOTE
Secretary of State for Justice v Rayner [2008] EWCA Civ 176
Facts
Mr Rayner ('R') was a schizophrenic who had previously been detained under hospital and restriction orders. He was released after a mental health review tribunal directed his conditional discharge, but in June 2005 the Secretary of State recalled him to hospital. Upon his return to hospital there was a failure to refer his case to a tribunal within one month, as required by s75(1)(a) Mental Health Act 1983. Thereafter there was a further failure to fix a date for the hearing within five to eight weeks of the referral as required by r29 of the Mental Health Review Tribunal Rules 1983. Once the tribunal was convened, R was once again granted a conditional discharge.
In the Administrative Court, Holman J considered whether s75 or a combination of r29 and s75 were compatible with Article 5(4) European Convention on Human Rights, which requires a speedy determination of the lawfulness of a person's detention. He held that s75 satisfied the requirements of Article 5(4) only if it was interpreted so as to offer an automatic and immediate reference to the tribunal. In respect of r29, there was no incompatibility in having a target date of eight weeks but an administrative practice of routinely listing after eight weeks was not lawful. The judge found a violation of R's right under Article 5(4). The latest date upon which the Secretary of State could have lawfully referred R's case to the tribunal was six days after his recall. The judge also held that s75(1)(b), which prevents a patient applying direct to the tribunal until six months after his return to hospital did not breach Article 5(4) because the Secretary of State's duty to refer to the tribunal amounted to an automatic review procedure sufficient to achieve compliance.
On appeal, the Secretary of State argued that there could be no breach of Article 5(4) unless the reference was delayed beyond the one month period specified by s75. R cross-appealed and submitted that a detained person ought to have direct and immediate access to the reviewing court, and that the Secretary of State's duty to refer to the tribunal was insufficient to ensure compliance with Article 5(4).
Held
The Court of Appeal upheld Holman J's decision and dismissed both the appeal and the cross-appeal. In relation to R's argument that the automatic review provisions were inadequate, the Court noted that the detained patient did have a direct right to challenge the lawfulness of detention by means of a judicial review in respect of any failure of the Secretary of State to comply with the duty under s75(1). Therefore the restriction under s75(1)(b) did not infringe Article 5(4).
The Secretary of State was generally not entitled to take the statutory maximum of one month before making a reference to the tribunal. A more energetic and rapid approach was required where the liberty of the subject was at stake and the reference was the principal method of getting the issue of the lawfulness of detention before a court, especially where there was no direct right to apply to a tribunal. Nonetheless, the immediacy of the referral must be determined on a case-by-case basis, as many factors could affect the timing. Although the trial judge had stated that an immediate reference was required, his conclusion that the latest the Secretary of State could have made a referral was six days after recall was appropriate.
The relevant
test with regard to speed under s75(1) was whether there had been a failure
to proceed with reasonable despatch, having regard to all the material
circumstances.
PEOPLE
Jonathan Cooper OBE
How did you get started in the law? Did you take a law degree?
No. I did history at Kent. My first job after university was as AIDS co-ordinator for the Haemophilia Society in the mid to late 1980s, just as the issues affecting people with haemophilia and HIV were at their most extreme. It's difficult to imagine now, but most of the people I was working with were frightened. People would whisper about their HIV status or that of a member of their family or a friend. We were running a campaign for compensation. This was the work of just two of us employed in the office - the director, David Watters, a really solid voluntary sector campaigner, and me.
That was your introduction into law?
That was how I realised both the strength and the weakness of law. I saw the potential of law, but where people did use it, they rarely succeeded. There were terrible stories from those who consulted us - things like a woman finding herself pregnant and suddenly being told she had HIV and being immediately pressurised to have a termination and be sterilised. I realised that the weakness of the system of government in this country was the lack of any kind of rights framework. Without planning to do so, I became a rights activist. The lack of a framework of rights showed the weakness of the common law and administrative law. People were left without any language of rights to articulate their grievance. Towards the end of my time at the Haemophilia Society we started to draft a declaration of rights for people with HIV and AIDS. Through that, I became familiar with rights documents like the Universal Declaration, the European Convention and the International Covenant.
Where did you train?
I did my diploma at City and then went to the Inns of Court Law School. To be honest, I took it one step at a time. I wondered about going back into the voluntary sector after the conversion course but I decided to keep going.
Where did you do pupillage?
Here, at Doughty Street and also at Cloisters. There were very few of us interested in human rights at that time and during and after my pupillage, I continued to work on human rights issues. For example, I undertook a consultancy for the Institute of Public Policy Research on how to implement human rights without incorporating the European Convention which was an idea being explored at the time. After pupillage, I practised for a bit from Doughty Street but I started to get more interested in the public policy side of human rights. I went to Liberty as its legal director for a short time and then came to JUSTICE to head up its project on human rights. This was just after the 1997 election. We knew that there would be a Human Rights Act and we worked on the bill and then its implementation. We had a lot of contact with the politicians like Jack Straw who were in charge of the process.
So, ten years on, how would you assess the effect of the bill and the process of its passage?
I was totally naïve about the issue of religion. Many of the church and faith groups were really hostile and wanted exceptions for themselves. We worked to limit them. In the event, we got section 13 in its current form. Actually, the exceptions do not come to much. This is equally true of the provisions about freedom of speech, though I think it is probably good to have that one there. I have always been a supporter of the scheme of the Human Rights Act (HRA). I never had any issue with the scheme of the bill. I do believe, however, that the ultimate goal should be an entrenched bill of rights. If I was drawing up my own scheme, I would take the politicians out of it and give ultimate power of construction to the courts.
What is your view on how the judges have fared in implementing the Human Rights Act?
They crucially got it right in their approach to proportionality and in terms of requiring proper review of government policy and action. Decisions at the highest level have, overall, been good. I do not think that the lowest courts have made the most of it and have missed opportunities. The courts have not done much that has surprised me. They have acted very constructively in their approach to national security issues. There has been a problem about the narrowness of their interpretation of the scope of the Act in their construction of the meaning of 'public authority'. They have, overall, got caught up in the old common law school approach to judicial review. It is the courts not really engaging in the constitutional issues that the HRA is all really about. Human rights should not become limited by this kind of intellectual exercise.
And your favourite judges?
No surprise here. Hale, Bingham and Steyn.
You did a lot of training at JUSTICE as well as lobbying?
Yes. I like that. We did loads in the two year period just after the Act received Royal Assent, before coming into force - from the then Lord Chancellor's Department to the then Ministry of Agriculture and Fisheries. I also did a lot of writing and a few third party interventions - for example, Brown and Leonard Cheshire.
And you have kept up the training.
Yes, both in this country and abroad. I had always had an interest in Europe. The creation of the New Europe opened up major opportunities for training. It has always been a very small core of people involved in this and I have done a lot - particularly in the countries of the former Yugoslavia and Turkey. I have become a strong advocate for the latter's membership of the EU.
WHAT YOU CAN DO
1. Apply to our summer internship programme
Open to law
graduates only due to the nature of the work involved in the internship.
This includes people who expect to have completed a law degree or conversion
course by the time they start their internship.
The closing date is Friday 9 May 2008 - for more details click
here
2. Write something for the student human rights network.
If you would like to have your work on the website please email jshrn@justice.org.uk.
We will publish original and interesting pieces relevant to the issues covered by the electronic bulletin. Maximum word limit of articles 1500 words. All work remains the property of the author and does not necessarily reflect JUSTICE's opinion.
3. Join JUSTICE as a student/pupil/trainee member.
See http://www.justice.org.uk/supportus/becomemember/index.html for further information.
4. Get involved in JUSTICE's student human rights network.
We intend to develop the network as a way of bringing together and encouraging students, trainees and pupils interested in human rights. We will send out three bulletins a year by email.
To join or contact us about anything to do with the network:
email jshrn@justice.org.uk
We want to
make the network as participatory as possible. If you would like to participate
in a virtual advisory committee then also tell us.
You are welcome to use the information in this website but must attribute
the source to JUSTICE in any written work
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