Monthly Archives: June 2010

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Parliament Square protesters evicted: analysis of judgment

The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) - Read judgment

The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square, with the High Court stating that his response to the protest was proportionate and not a breach of the protesters’ human rights.

The protesters have gained a temporary reprieve by appealing the decision, and according to their website have therefore delayed their eviction until at least 4pm on Friday 2 July

As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”. Boris Johnson, the Mayor of London, launched an action for possession against the protestors, who he claimed were trespassing on Parliament Square.

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Human Rights Act does not apply on the battlefield, says Supreme Court [updated]

R (Smith) v Secretary of State for Defence & Anor [2010] UKSC 29 – Read judgment

The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.

The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.

The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.

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Parliament Square protesters to be evicted by Mayor

The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square. The protesters have won a temporary reprieve by appealing the decision.

As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”.

Boris Johnson, the Mayor of London, launched an action for trespass against the protestors.

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Box ticking or thinking: what are the duties of planners?

The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment

In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process -

The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”. Continue reading →

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Suspect terrorist on bail entitled to continued anonymity in his own interests

Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010

AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed - read judgment

We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
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School did not breach suspended pupil’s Convention rights, says Supreme Court

In the matter of an application by ‘JR17′ for Judicial Review (Northern Ireland) [2010] UKSC 27

The Supreme Court found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring – read judgment

A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:

No person shall be denied the right to education…

The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.

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Court of Appeal rules on transsexual’s pension rights under EC law

Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010

A person who had acquired a different gender was entitled under European law to obtain the legal rights, such as an earlier pension, associated with the acquired gender – read judgment

The appellant had undergone male to female reassignment surgery. In 2002 she applied for a state pension, to be backdated to her sixtieth birthday. The Secretary of State decided that she was only entitled to a state pension from her 65th birthday. On appeal to the tribunal it was found that she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004 (“the GRA”)  and therefore she was not entitled to legal recognition of her new gender. As a consequence she could not qualify for a state pension from the age of 60. Prior to the Act, the United Kingdom had failed to implement Equal Treatment Directive 79/7/EEC to ensure that any national laws, contrary to the principle of equal treatment, were abolished. The Upper Tribunal rejected her appeal finding that she did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7. Continue reading →

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Wikileaks founder emerges from hiding

Wikileaks founder  Julian Assange, who has been on the run from the US authorities after being linked to a serious US national security breach, has come out of hiding in Belgium.

The Telegraph reports that trouble started for Assange after a US intelligence analyst bragged about sending 260,000 confidential state department cables about the wars in Afghanistan and Iraq to the online whistleblower website. Washington tried to stop the classified information being posted online by arresting the analyst, Bradley Manning.  Amid reports that he was the target of a US military manhunt, Mr Assange went to ground for one month. Continue reading →
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Most senior female judge: Human Rights Act hampered by constitutional problems

Baroness Hale of Richmond has spoken to the Salford Human Rights Conference on the development of human rights law, and has lamented the time spent on constitutional wrangling rather than applying the essence of the Act.

Lady Hale is the only female judge on the UK Supreme Court. The speech can be downloaded here, and makes for interesting reading; many thanks to the UK Supreme Court Blog who have provided a useful summary.

Lord Phillips, the head of the Supreme Court also spoke recently on the Human Rights Act, responded to accusations that it is hampering the fight against terrorism. He said that “respect for human rights is a key weapon in the ideological battle”. Lady Hale suggested that the tension between the Government and the courts arising from such cases is preventing judges from doing their job. She concluded:

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Polish religious education breached freedom of conscience rights of pupil

Grzelak v. Poland (no. 7710/02) – read judgment

The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.

The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.

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Timetable for implementing Equality Act Reinstated

The controversial Equality Act, which was designed to replace a number of anti-discrimination laws, was due to come (partially) into force in October. However the intervening change of government since its enactment in April 2009 appeared to threaten the legislation, particularly after the timetable for the gradual enforcement of its provisions was withdrawn.

Some experts speculated that instead of repealing the Act, the new Government would simply not bring certain parts of it into force, notably the provisions on pay reporting and positive discrimination that were unpopular with the Conservative Party. However the Government Equality Office has now reinstated the original timetable, with the core provisions due to commence in October.

There is still some possibility that some parts of the Act will not become law. Introduced as part of the Labour Party’s 2005 manifesto fulfilment, the Equality Act came under fire for some of its sections dealing with equal pay, positive action and addressing socio-economic disadvantage.
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Court of Appeal rules on mental health institutions’ obligations to voluntary patients

(1) Richard Rabone (In his own Right & as Personal Representative of the Estate of Melanie Rabone, Deceased) (2) Gillian Rabone(In her own Right) Appellants v Pennine Care NHS Trust 21 June 2010 [2010] EWCA Civ 698 – read judgment

Court of Appeal rules that health trusts did not have operational obligations under Article 2 of the Human Rights Convention to take all steps to prevent the suicide of voluntary patients.

The appellants, parents of the deceased (Melanie) and  administrator of their daughter’s estate, appealed against a decision ([ 2009) EWHC 1827 (QB),(2010) PIQR P2) that the respondent NHS trust had not breached Article 2 of the European Convention on Human Rights 1950. Melanie had suffered from a recurrent depressive disorder and at the age of  24, she agreed to be informally admitted to the Trust’s hospital. Despite the fact that it had been noted by employees of the trust that she had thought of suicide and self-harm, she was later granted two days’ home leave. During that leave, Melanie committed suicide.   Continue reading →

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Budget benefits cuts and the human right to money

George Osborne is to announce the Government’s emergency budget today. Although the Government has been seeking to emphasise measures which will soften the blow to the poor, the fact remains that these are the biggest cuts in decades and that many will end up worse off, particularly if wages decrease and unemployment increases.

Update: The full budget can be downloaded here. The section on benefits starts at page 33.

The Government is to cut benefits by £11bn by 2014-15. The huge cost of benefits (“spending on social security and tax credits has increased by 45 per cent, around £60 billion, in real terms over the past 10 years.), the Chancellor told Parliament, were one of the reasons why there isn’t any more money in the Government coffers. The Health in Pregnancy grant will be abolished from 2011 and Sure Start will be limited. Child Benefit is to be frozen for the next three years. Disability Living Allowance will be restricted by a new medical check from 2013.  The Chancellor has said he will “increase the incentives to work” and will reassess benefits on the basis of the Consumer Price Index rather than the Retail Price Index. Housing benefit will be limited significantly and maximum limits on what can be claimed are to be introduced for the first time.

Rosalind English posted two weeks ago on whether budget cuts will lead to revised calls for “socio-economic” human rights; a concept which is as old as the European Convention on Human Rights and just as controversial. We will now revisit that post.

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Terror advice decision causes uproar in United States, but could it happen here?

Holder v. Humanitarian Law Project, United States Supreme Court – Read judgment

The US Supreme Court has ruled that it does not violate the US Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions.

The judgment does not, of course, have any direct effect on the UK. But UK anti-terrorism legislation already provides the police with broad powers to prosecute those who support terrorist groups. The UK Government is likely to be keeping a close eye on the United States in order to guide future policy, in terms of what is and what is not beyond the pale in restriction freedom of expression.

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Even more secret evidence trouble for Government in Al Rawi case

 

 

 

Binyam Mohamed

Al Rawi & Ors v the Security Service & Ors [2010] EWHC 1496 (QB) (21 June 2010)  – Read judgment

The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.

The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.

The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.

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