Alistair Sloan, Advocate

The UK and the ECtHR: 2012 statistics

May 6th, 2013

The Council of Europe (the body responsible for overseeing the European Convention on Human Rights) has published a document reviewing the cases handled by the European Court of Human Rights relating to the United Kingdom in 2012. The document makes for interesting reading and rides a coach and horses through the lies and spin reported by the press in the United Kingdom – don’t expect to see the details of this report discussed in the House of Commons, in the Daily Mail or on the BBC.

During 2012, the European Court of Human Rights (ECtHR) dealt with a total of 2,082 applications concerning the United Kingdom of which 2,047 were either declared inadmissible or struck out. This means that the Court refused to deal with, for one reason or another, more than 98% of the applications concerning the United Kingdom that it dealt with last year. Of the 24 judgments (concerning 35 applications) that it did make, at least one violation of the convention was found in just 10 of those cases. That means, of the judgments issued, 59% found entirely in favour of the Government while 41% found partially or wholly against the Government. Putting those figures into the wider context, the UK partially or wholly lost in less than 0.5% of applications against it handled by the ECtHR last year.

It is argued by some that the ECtHR interferes too much in our domestic affairs; that contention cannot stand when put alongside the figures released by the Council of Europe. The fact is that the Court chucks out the vast majority of the cases made against the United Kingdom without even issuing a judgment, and where it does the majority find wholly in favour of the Government.

Of course, the Human Rights Act 1998 (HRA) has to be taken into consideration as well when placing the effect of the Court in context. Section 2(1)(a) requires UK courts and tribunals to “take account” of judgments, decisions, declarations or advisory opinions of the ECtHR when determining questions which have arisen in connection with a convention right (which for the purposes of the HRA are only those rights listed in Schedule 1 to the HRA). That impact is slightly harder to quantify than the direct effect of the ECtHR on the United Kingdom through the judgments it issues concerning the United Kingdom. However, the direct effect is extremely small and disproves some of the hysteria around the convention, especially that hysteria which says the ECtHR is frequently finding against the UK; it finds in favour of the UK Government more than it does against it.

The truth is the media only ever report the more contentious decisions, especially those which the Government have lost. If you’re only hearing one side of the story you are going to end up with a rather unbalanced and biased view of things. The question is, how do you counter the unbalanced and biased reporting? Is it even possible to do so?
Sentencing in historic cases

May 2nd, 2013

There has been a lot in the news about historic sex offence, particularly in light of the Jimmy Saville investigation. However, those related investigations are by no means the only circumstances in which historic sexual offences are coming to light, and for which offenders are being convicted. Therefore, it might be worthwhile considering how the Court is to approach sentencing in these (and similar cases). Historic cases (of all types, not just sexual offences) have had a history of causing concern and outrage to the public as the sentences can sometimes appear to be substantially less than what would be expected if someone was convicted of the same crime today.

In 2011, the Court of Appeal issued guidance specifically relating to the sentencing of historic sexual abuse cases in England and Wales. The guidance was given in the case of R v H and others [2011] EWCA Crim 2753. Upon reading that case, it becomes clear that sentencing offenders in cases where they have admitted sexual offences which had occurred a significant time ago is a complex exercise.

The first thing that should be noted is that the maximum sentence which can be given in any case is that which was applicable at the time the offence was committed, not at the time of sentencing. Where the law has been amended over time to increase the penalty for a particular crime, it is not possible for the Court to sentence in the context of that maximum. Similarly where the maximum has been reduced over time, the court is still required to sentence in line with the maximum that was in place at the time of the offence.

It should also be noted that the charges brought against an offender whose crimes were committed in the past must reflect the law at the time of the offence, not at the time he or she is charged with anything. There are some courses of conduct which, historically, would be an indecent assault, which would now be classed as rape (under the Sexual Offences Act 2003).

While the Court has to take account of the sentencing regime that applied at the time of the offence, the Court must also take account of the sentencing regime in place at the time of sentencing. Therefore, the Court will have to take account of any guidance issued by the Sentencing Council (or its predecessor organisation, where that guidance is still in force). However, where those guidelines would produce a sentence greater than the maximum permitted at the time the offence was committed, the sentencing court would have to make adjustments to that sentence so as to ensure it was not greater than the maximum allowed.

The Court of Appeal found it to be wholly unrealistic to attempt, at the time of sentencing, to try and pass the sentence that would have been passed had the offender been convicted at the time. Beyond that, the process of sentencing is rather similar: account must be taken of the facts of the offence, the culpability of the offender at the time of the offence and whether than has been early admission of the offences.

One last thing that the Court of Appeal noted was that the passage of time between the offence and the date of conviction could be an aggravating factor, but that mitigation could also be found in that time. For example, if it can be demonstrated that between the offence being committed (or last being committed) and the date of sentence there is evidence of an unblemished life, particularly where ‘accompanied by evidence of positive good character’, then there may be mitigation to be found (which presumably could reduce the sentence actually passed). The passage of time may also be an aggravating factor, the Court stated, where (for example) there is evidence that the offender poses a continued risk to the public, or that he or she continued to offend during that time.

Sentencing is always complex, but when dealing with historic cases it is even more complex. The Court has to have due regard to the law as it was at the time of the offence. This is to ensure that the sentence is not harsher than could (not would) have been given at the time of the offence. When the offence and date of sentence are separated by significant periods of time during which there has been substantial changes in the law, it can appear as though the Courts are being ‘soft’ or too lenient on offenders. This is especially so where the maximum possible sentence has increased over that period.

The guidance in R v H and Others should be kept in mind when reading about sentences involving those convicted of offences which occurred many years, sometimes even decades, ago. For a full understanding of just how the Court should appraoch these cases, I would stronly suggest reading the judgment in its entirity.
Abu Qatada and the Rule of Law

April 23rd, 2013

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again. As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country). Let me be clear, I am no fan of Abu Qatada. He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes. However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings. However, I would suggest that this is the wrong place to direct criticism towards. The law is clear and it is for the judges to apply the law and to uphold the law. Judges are not there to make or to change the law; that power lies with the Government and Parliament. If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government. In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law. They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party. They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not. The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts. They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society. They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law. It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision. In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make. The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law. If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account. There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye). When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy. If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won. Is that what you really want?
FOI and requests for documents

April 13th, 2013

In yesterday’s regular ‘decisions round-up’, the Scottish Information Commissioner once again issued warnings about valid FOI requests to public authorities. It has been a theme in recent months that authorities have been refusing requests for documents on the basis of the request not being a valid information request.

It is absolutely correct that the Freedom of Information (Scotland) Act 2002 does not provide a right to copies of documents, but to information. That is clear from Glasgow City Council v Scottish Information Commissioner. However, the Commissioner (both the previous and the incumbent commissioners) have said that a request for copies of documents remains a valid request for information. This is on the basis that section 8 of the FOISA requires that a person adequately describes the information that they are seeking in order to enable the public authority to locate it. There can be no better explanation of the information sought than reference to specific document(s). Such requests hugely reduce the amount of work that a public authority has to do in order to locate the information. Refusal is likely to cost the authority more as appeals to the Commissioner will take up time which could have been better spent simply progressing the request. In the end they’re still probably going to have to process a request, even if it is re-worded slightly, and they will have wasted money on the initial refusal.

As has already been said in this post (and in others on this blog), FOISA does not give people a right to a copy of a document, only to the information contained within it. It would not be very cost effective for the public authority to reproduce an entire document, so it’s likely that in practice an applicant will receive a copy of the document (with any redactions made by the authority) in fulfilment of their request.

Public authorities should only really be refusing requests for non-compliance with section 8(1)(c) where it is not at all clear what information the applicant is actually seeking, not because they’re not familiar with the intricacies of Freedom of Information law. Their ‘advice and assistance’ duty might well mean that when issuing a substantive response to the request that they advise of the right to information and not to documents.

While public authorities should not be refusing requests on the grounds that applicants are not entitled to documents, but rather to the information contained within them, it might be sensible simply to ask for “all the information contained in…” or “the full content of…”; doing so will likely save applicants the frustration of dealing with a pedantic authority acting against the clear advice of the Scottish Information Commissioner.
Public authority contact details and FOI

April 10th, 2013

This is an FOI decision from the Information Commissioner that I have planned to blog about for some time, but have now only just got round to blogging about it. On 11 March 2013 the ICO issued decision notice FS50468600 which involved the Department for Work and Pensions (DWP). The content of the decision notice is not all that important until we turn to paragraphs 32-36, which are headed up as “other matters”.

In particular paragraph 35 is of note in which it states that his office experienced difficulty in actually speaking to those who were involved in the request at the DWP’s side of things. It described the DWP’s practice of not providing telephone numbers or contact details within its responses and how this makes it very difficult for the appropriate contact to be located within the organisation. The public authority advised the Commissioner that it did not include these details so as not to breach the privacy of the non-senior staff involved; it described the staff in question as not being in public-facing roles.

In Paragraph 36 of the decision notice the Commissioner states quite clearly that he does not agree with this approach. The decision notice states that “if such staff are responding to requests made under the FOIA then he considers this to be a public-facing role which is unlikely to attract an expectation of privacy” (Paragraph 36).

The DWP are by no means the only public authority which has adopted similar processes in respect of FOI requests. I can remember one time trying to get hold of a central Government department (I can’t remember exactly which one, but I have a feeling it was either the Home Office or a connected public authority) to discuss a response that had been issued by them (something that merely wasn’t very clear and, as it later transpired wasn’t in need of an internal review). However, there was no contact details provided for the individual. I was informed that the FOI team were not public-facing and they wouldn’t speak to members of the public over the telephone.

It was very frustrating and actually resulted in a higher cost to the public authority in my case. There was just one thing that I wasn’t clear about and I’m sure that had I been able to have a quick telephone conversation with the person who issued the decision then there would have been no need for them to conduct an internal review. However, the Authority’s attitude and processes meant my only option to get the clarification was to request an internal review. This will have then required a senior member of staff within the authority to review the entire handling of the request and issue a response to me; far more expensive than 5 minutes on the phone explaining something to the applicant.

Not publishing contact details for those responsible for FOI within the organisation also makes seeking advice and assistance from the public authority almost impossible. My reading of the Act suggests to me that advice and assistance is not only something to be provided in a refusal notice, but something that should be available to prospective applicants. I know that I’ve certainly phoned up a public authority and had a chat with them about a request before making it; as a consequence I have been able to frame my request in a way that has made it a much more efficient process for the public authority (and thereby reducing the cost to the taxpayer). The FOI Officer, knowing the structure of their organisation and how information is generally held, was able to advise as to what information they were likely to hold and how it was likely to be held.

I tend to agree with the commissioner that anyone sending a response out to a FOI request is clearly public-facing; it might be that a particular role was not public facing pre-FOI, but in these post-FOI days anyone could, in theory, be a public-facing member of an authority’s staff. It should be easy for applicants to contact public authorities, not least because the public authority is obliged to provide advice and assistance, but it can just save public authorities money. It can help ensure more focused FOIs that are easier to deal with and can prevent expensive internal review requests (or perhaps even more expensive ICO investigations).

Hopefully the ICO’s criticisms of this approach in this decision notice will feed their way round any other public authorities who still adopt a practice of not giving out contact details for someone able to provide advice and assistance.
OSIC Decison 42/2013: Mr Ackroyd and the University of St. Andrews

April 5th, 2013

I’ve been meaning to blog about this particular decision of the Scottish Information Commissioner for a couple of weeks now, but have just not had the time. On 14 March 2013 the Commissioner issued her decision regarding a complaint made to her by Mr Martin Ackroyd in respect of the way in which the University of St. Andrews handled an information request (Decision 42/2013).

The background is set out in paragraphs 1 – 6 of the Commissioner’s decision. Mr Ackroyd requested information in respect of E-mails received by a particular employee of the University. The employee had written an article on an internet blog. The employee later commented on the article alluding to embarrassing E-mails that he had been receiving as a result of the article. It was these E-mails that Mr Ackroyd had requested.

The University argued that it did not hold the information for the purposes of the Freedom of Information (Scotland) Act 2002 (FOISA) stating that it held them on behalf of the employee (thus they would fall outside of the scope of FOISA by virtue of section 3(2)(a)(i) of the Act). In the alternative it argued that even if it did in fact hold the E-mails that they would be exempt from disclosure under sections 38(1)(b) and 36(1) of FOISA. These exemptions relate to personal information and confidentiality respectively.

Mr Ackroyd was dissatisfied with the Universities response and sent a requirement for review to the University. In response the University upheld its original decision with modification. The University still argued that the E-mails were not held for the purposes of FOISA, but if they were they would also be covered by section 30(b)(ii) of FOISA which relates to information which if disclosed would or would likely be to inhibit substantially the free and frank exchange of views for the purposes of deliberation.

Mr Ackroyd remained dissatisfied and sought a decision from the Scottish Information Commissioner pursuant to s.47(1) of FOISA.

The first thing that the Commissioner decided was that at least some of the information held was environmental information within the meaning od Regulation 2 of the Environmental Information (Scotland) Regulations 2004 (EISRs). As a consequence the decision considers both FOISA and the EISRs.

The facts of the request get slightly more complicated. The employee in question had bene the convener of a seminar held at the University and the blog that was written related to that seminar; it was published shortly after. The decision notes that Mr Ackroyd drew attention to a certain comment in the blog piece “indicating that he [the employee] was commenting in his capacity as the convenor of the seminar” (paragraph 28). The decision also records (at paragraph 28) that the employee had commented on the blog and mentioned papers that he (the employee) had written on the subject in question. Mr Ackroyd argued that these two things together (along with other matters dealt with in paragraphs 29-31 of the decision) meant that the employee was acting in his capacity as an employee of the University.

The University argued that the life of an academic is such that the connection between work and private life is so fine and that sometimes they cross over. They argued that an academic might use their association with the university in order to gain some credibility in their private life rather than as an employee of the university. The University also argued that the convention of academic freedom created some independence between the University and its academics. “The University also stated that it (and universities in general) extended to academic communities a relatively high degree of space, freedom and autonomy to engage with academic disciplines and pursuits and, as a result, information may be created which it would not move to claim or exert control over.” (para35)

There are more to the arguments of Mr Ackroyd and the University, but for the sake of brevity and so as to avoid replicating the Commissioner’s decision in full I have not mentioned all the ones referenced in the Commissioner’s decision. They can be read in full in paragraphs 26-38 of the decision.

What did the Commissioner find?

The Commissioner decided that the seminar which had been chaired by the employee was part of the employee’s work at the University (paragraph 43). The Commissioner also decided that the blog post was a continuation of the discourse of the seminar which he had chaired in his capacity as an employee of the University (paragraph 43) and that the employees ongoing involvement in the discussion that arose out of the seminar cannot be separated from the employee’s work at the University (paragraph 44). Despite the personal nature of the e-mails the commissioner decided that they were held by the University for the purposes of FOISA (paragraph 49). Paragraphs 60-62 deal with whether the information was held for the purpose of the EISRs and the commissioner reached the same conclusion as she did in respect of section 3(2)(a)(i) of FOISA (paragraph 62).

The Commissioner then went on to consider the exemptions that the University would have sought to apply had it been the case it held the information (which the Commissioner determined it did). For the reasons set out in paragraphs 51-57 the commissioner found that section 30(b)(ii) of FOISA was not engaged and therefore not relevant. No consideration was given to section 36 as it would appear that the University may have stopped relying on that exemption.

The Commissioner ordered the release of the withheld information to Mr Ackroyd subject to some redactions made by the Commissioner.

Discussion

Before giving my thoughts on the decision I will note that I have only the Commissioner’s decision to go on. I have not seen the blog or the comments nor have I seen the E-mails in question.

This is an interesting decision and one of importance for the Higher Education sector. The decision explores some of the anomalies in the academic world that do not generally appear in other public authorities; namely the convention of academic freedom. However, the decision could have wider application beyond the Higher Education sector.

Should academics be worried about the impact of the decision? I would suggest that they should not be. It appears clear from the decision that where there is a genuine separation between the work undertaken by an academic on behalf of the University and that undertaken by the academic in a private capacity that the information will not be subject to FOISA.

For example, if an individual gives a lecture to an organisation because they are a specialist in the field and they mention their connection to a University I don’t think anything held on the University’s computer systems (or indeed the academic’s private systems) would become subject to FOISA simply because they establish their credibility by referencing the University at which they work. Only where that lecture was given in the course of the academic’s employment at the University would it become subject to FOISA.

It is clear that the balance between what an academic does privately and what they do as part of their employment at the University is finely balanced. Simply because an academic undertakes work in their spare time and the work is not such that the University would lay claim to it or it was not work which the University had sought the employee to undertake will not meant that it is not subject to FOISA or the EISRs.

It’s certainly an important decision and one that all FOI Officers in Scottish colleges and universities should have tucked away for reference to at a later time; it is not unlikely that similar situations will arise again in the future (especially given the public nature of academics work).
Police Scotland and Freedom of Information

March 25th, 2013

Next week the Police Service of Scotland will take responsibility for policing Scotland from the current eight police forces in Scotland. This will have implications for Freedom of Information, at least in the short-term.

The cost of handling an FOI request is likely to increase dramatically meaning that requestors may frequently have their requests refused under section 12 of the Act (excessive cost of compliance). The new single force will continue to run eight separate IT systems while new IT systems are procured and launched. Undoubtedly it will take some time for information held in paper form to be better organised taking account of the new single force structure. Therefore, searching for information held by the new force will be rather time consuming. In some requests the new force will be required to carry out the same searches within each of the boundaries of the eight forces; if some of the old forces held the requested information on multiple systems then you could be looking at more than eight almost identical searches per request. That’s a lot of staff time simply locating whether the information is held by the force.

It is likely that most requestors will only want the information as it relates to their old force area and so it might be worthwhile for the next year or so ensuring that when you are requesting information that you are as geographically specific as possible. For example, if you would have requested the information from only Strathclyde Police were it still in existence, then state in your request that you are only interested in the information held which relates to the old Strathclyde area.

Currently if you wish a nationwide view then you would be requesting the information from the eight forces and the cost to each force would be separate from the other forces. However, now you will be requesting it from a single body meaning the cost of searching within each of the old force areas is burdened by one organisation (the new single force). As a consequence of this it will be aggregated and might engage section 12 much more easily than before.

When the new force comes into existence it will be under a great level of scrutiny to ensure that it is delivering what is needed in Scotland, but it may well become more difficult for the public and journalists to hold the force to account through FOI.

It will certainly be worthwhile watching the responses from the new single force to see if there is an increase in the number of section 12 refusals. An increase would mean less public scrutiny of a very large public authority with an enormous budget and a significant amount of power.
ECHR, international law and Abu Qatada

March 10th, 2013

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election. Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election. The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way. The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges. Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial). However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture. This prohibition has achieved jus cogens status. Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted. In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be. The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153). This means that the UK is bound by international law not to torture anyone. Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law. Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified. In the international context it refers to the legal norms that have developed through the customary exchanges between states over time. It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees. The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33. However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT). Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988. There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens. However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured. Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations. That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR). The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT. The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State. Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts. In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does. There is a substantial body of international law protecting the human rights of individuals. The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm). With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities. Domestically we have the HRA incorporating elements of the ECHR into our law. It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document. However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to. It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT. If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.
The importance of FOI training in public authorities

March 8th, 2013

A decision notice published by the Scottish Information Commissioner yesterday (7 March 2013) highlights why it is important that all staff within public authorities have at least a basic working knowledge of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Decision 032/2013 concerned an information request made to NHS Fife. The applicant made an information request to NHS Fife on 2 August 2012 to which NHS Fife responded on 5 October 2012. This represents a significant delay on the 20 working days permitted by section 10(1) of the Freedom of Information (Scotland) Act 2002. The decision notice does not give any reason as to why it took NHS Fife so long to respond to the information request.

On 18 October 2012 the applicant wrote to NHS Fife requesting a review of their decision. The request for review was sent directly to a particular member of staff with whom the applicant had been having protracted correspondence. Unfortunately for NHS Fife that member of staff did not “recognise the significance” of the request for review under the Freedom of Information (Scotland) Act 2002 and consequentially did not take the action required to ensure that NHS Fife was able to respond within the timeframe permitted by section 21(1) of the Act (which is 20 working days).

NHS Fife’s explanation that the member of staff who received the request did not recognise the significance of a request for review under FOISA would suggest that something has went wrong procedurally and most probably around staff training. All staff within a public authority should be able to spot information requests and requests for review. Having identified an information request of request for review all staff should know what to do with such correspondence. When staff are not able to perform these tasks it can lead to problems such as in this case where a requirement for review went unanswered beyond the statutory deadline. As a consequence an application was made to the Commissioner and a decision notice has been issued.

This decision notice should serve as a reminder as to how important that all staff (whether they routinely deal with information requests or not) should have at least a basic knowledge of information access rights to ensure that public authorities comply with their obligations under the various access regimes.
Criminal record checks, Article 8 and fairness

January 31st, 2013

On Tuesday the Court of Appeal issued an important judgment on the disclosure of criminal records and its relationship to the right to a private and family life; protected by Article 8 of the European Convention on Human Rights (ECHR) as incorporated into domestic law by the Human Rights Act 1998.

The main question before the Court was whether the requirement for applicants to certain types of job to disclose all previous convictions was incompatible with the ECHR. The Court of Appeal held that the requirement to disclose all convictions was disproportionate to the aims of the policy; consequentially it found that there was a breach of Article 8. Yesterday, the Government announced that it intended to appeal that decision to the United Kingdom Supreme Court.

The decision by the Government to appeal the decision to the Supreme Court is a disappointing one. It demonstrates a lack of commitment to their so called “rehabilitation revolution”. Not so long ago the Prime Minister gave a major criminal justice speech which promised a “tough but intelligent” approach to criminal justice from his Government. The decision to appeal this Court of Appeal seems to fly in the face of the promise of an intelligent approach to justice.

Clearly there is a legitimate aim in ensuring that those who are genuinely unsuitable to work with children or other vulnerable people are prevented from doing so. No sensible person is suggesting that this shouldn’t be the case. However, the current approach is really rather ridiculous.

Each and every single one of us gets things wrong; we make bad decisions and that can have consequences for us. If we commit a criminal offence and that is detected then quite rightly there will be a consequence: a fine, community service or even a prison sentence. Those who break the law are punished by the Court in the way that the Court; taking account of all the circumstances of the case, decides is appropriate.

Once a person has served their sentence; the punishment for the crime that they have committed, they should be able to get on with their lives. There should be no restrictions placed upon their life unless absolutely necessary for the protection of the public. Rehabilitation requires that people are able to get jobs and when whole professions are closed off to them because of some minor convictions (some of which may well be extremely old) then this becomes significantly harder; it may even act as a disincentive for a person to desist from crime.

There were some fantastically stupid examples of criminal convictions that were so old that they may as well never have existed preventing people from standing as candidates for the Office of Police and Crime Commissioner in their area. Some of these convictions were40 years old and the individuals in question had dedicated their life to public service. How can it be right that convictions that old can still be considered relevant when the individuals have clearly demonstrated that they have been successfully rehabilitated? It just seems to be part of a never-ending punishment that our society largely considers it acceptable to place upon those who transgressed the law in their past.

It is entirely possible to devise a system which ensures that vulnerable groups are protected from those who pose them harm whilst also ensuring that those who have changed their lives or have simply made a few bad choices in their past can get on with life and not be forever reminded of and plagued by their past. It’s not easy to do, but that shouldn’t stop the Government from devising such a system; it might well take them some considerable time. However, if we want to progress as a society and ensure that those who want to be rehabilitated can actually be so; then we need to ensure that we provide an environment in which that can be achieved. The present system cannot facilitate that and the Court was quite right to find that there was an unjustified interference with a person’s Article 8 rights as a consequence. The Government should be spending time and money on a replacement system rather than appealing to the Supreme Court.