Monthly Archives: November 2010

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European states will not be forced to allow gay marriage

Schalk and Kopf v. Austria (application no. 30141/04) – Read judgment / press release / press release 2

The European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria. The effect of the decision is to make the court’s rejection of the same-sex couple’s claim final.

The decision means that the European Court of Human Rights will not force states to allow same-sex couples to marry, for now at least. This has a potential bearing on the UK, where a number of same-sex and heterosexual couples are currently bringing claims against UK laws which permit civil partnerships for same-sex couples but prevents them from marrying.

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Costing the planet: should environmental cases have a free run?

Big business between government and property developers may be at risk from public interest challenges in the courts if current obstacles are removed.

Following  critical findings by a UN environmental body, the Government has set out its latest proposals for allocating the costs burden in environmental cases.  The current position is that an applicant who seeks to dispute the lawfulness of a decision, say, to grant permission for a development, will only  get a court order preventing commencement of construction if they are prepared to pay for the developer’s loss should their claim fail at the full trial of the merits.

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Failure to deport Philip Lawrence killer was not about human rights

It has been widely reported that Learco Chindamo, who was convicted of killing headmaster Philip Lawrence in 1995, has been rearrested only months after being released from jail. The story has reopened a debate over the Human Rights Act, on the basis that it prevented Chindamo from being deported to his native Italy. But did it?

In fact, what the case really highlights is that the unpopularity of the Human Rights Act is in part due to inaccurate media reporting of human rights cases, even 10 years after it came into force.

The Telegraph reported at the end of last week that Frances Lawrence, Philip Lawrence’s widow, has urged the prime minister to act on his previous pledges to scrap the Human Rights Act, as

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Lies and damned lies: the standard of proof in asylum cases

MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49 – read judgment (press summary in earlier post)

The Supreme Court has ruled that where the Asylum and Immigration Tribunal (AIT) had directed itself correctly as to the impact of an asylum seeker’s lies on his claim, the Court of Appeal should have been very slow to find that it had gone on to apply that direction incorrectly.

This case brings to the fore the very difficult task facing immigration judges trying to determine the veracity of claimants’ testimony in asylum cases. The Supreme Court declined to express a conclusive view on the standard of proof in this area, a point which was acknowledged to be “both difficult and important”. It was left for an authoritative decision by that Court – but when such an occasion arise? The importance of settling this point cannot be overstated. Continue reading →

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Asylum tribunal must think properly about private life

HM (Iraq) v The secretary of state for the home department [2010] EWCA Civ 1322 – Read judgment

The Court of Appeal has overruled the Asylum and Immigration Tribunal’s decision to deport a 25-year-old Iraqi citizen who had lived in the UK since he was 12 and had recently been sent to prison for drug dealing, on the basis that it did not think carefully enough about his human rights to private and family life.

The decision – which is unusually concise and easy to follow – highlights the careful balancing exercise which an asylum and immigration tribunal must undertake in order to weigh up whether a person’s human rights to private and family life outweigh the public good of sending them back to their home country. In this case, although HM won his appeal, his case must now be reheard – for a third time – by an asylum tribunal.

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Was local authority responsible for harassment campaign against vulnerable adults?

Application no. 32666/10 by X, Y & Z against the UK, lodged on 8 June 2010 – Read statement of facts

In a potentially landmark case, the European Court has been asked to determine the extent to which a local authority is under a duty prevent a breach of a person’s rights under Articles 3 (against inhuman and degrading treatment) and 8 (home and family life) in a case where two people with learning difficulties were violently harassed and threatened by a group of teenage youths.

The case concerns vulnerable adults who rely on social services. X and Y, who are married, both have learning difficulties. Z is the mother of X, and acted as a carer and advocate for both X and Y. X and Y lived in Hounslow Borough with Y’s two young children. Three local authority departments were involved with X and Y’s family, providing for their housing needs and allocating social workers for both the adults and children. Over a period from August 1999 until November 2000, X and Y were continually harassed and threatened by a group of teenage youths, who used the flat as a general ‘doss house’, dumping stolen goods, having sex and staying overnight.

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Asylum seeker’s lies relevant to outcome of claim, says Supreme Court

MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49. Read judgment

Update,  26 November – Rosalind English’s case comment is here

The following report is based on the press summary provided by the Supreme Court.

The issues raised in this appeal were: (1) the correct approach to the relevance of lies told by an asylum seeker in the assessment of real risk of persecution on return to his or her country of origin; and (2) how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law.

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Jury summings-up should be binned, says judge

Updated | Juries are often being hindered by judges’ interventions, Lord Justice Moses has argued in the Annual Law Reform Lecture at Inner Temple.

In an illuminating and entertaining speech, he argued that many of the directions to juries are unhelpful and given in a “foreign tongue”, and that we should “no longer pretend that judges can assist a jury’s recollection by a recitation of the facts”.

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Powers which “strike at the heart of our constitutional system” may be diminished

Updated | The House of Lords has voted against the Public Bodies Bill for a second time, making it more likely that the so-called Henry VIII powers buried within it will be revised.

The House defeated the bill by 235 votes to 201. The Bill, which has already attracted attention for seeking to abolish 192 quangos, was heavily criticised by the House of Lords Select Committee on the Constitution. The committee said that the powers given to ministers under the bill to change the statute book were too broad, and needed to be limited by procedural safeguards (see this post). It argued:

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UK and Strasbourg to conflict over return of Iraqi refugees

Iraqis whose applications for asylum are unsuccessful will be continued to be deported, according to a government minister. The announcement comes despite the European Court of Human Rights effectively calling for a freeze on the practice.

The BBC reported on Monday that Foreign Office minister Alistair Burt told the them that Iraq was now considered safe enough for people to return to. An earlier post explored the legal implications of the return by the UK of Baghdad last year.  The Upper Tribunal (Immigration and Asylum Chamber) held that the degree of indiscriminate violence in Iraq was not so high that the appellants could resist return.
Other parties, such as the UN High Commissioner for Refugees, maintain that much of Iraq remains unsafe, although the majority are sent to the North where explosions and shootings are not the danger they are in the South. But as long as the UK government maintain the view that Iraq is no longer a war-torn country, there are no grounds for the Iraqi’s continued presence in here. Continue reading →

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Sexual orientation removed from UN resolution condemning executions

The Social, Humanitarian and Cultural Affairs Commitee of the United Nations has narrowly voted to remove sexual orientation from a draft resolution against extrajudicial, summary or arbitrary executions.

In light of the guarantee of the right to life, liberty and security of person in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the resolution condemns all extrajudicial, summary or arbitrary executions and demands that all States take effective action to prevent, combat, investigate and eliminate such executions.

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Europe sets deadline for UK to let prisoners vote, or else

Updated | Greens and M.T. v. the United Kingdom (application nos. 60041/08 & 60054/08) – Read judgment / press release (which the case summary below is based on)

The European Court of Human Rights is to give the UK a deadline of six months in order to allow prisoners to vote in elections, or it could face significant consequences.

The warning came by way of the judgment in a new case concerning the continued failure to amend the legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the United Kingdom. The court, following its own five-year-old decision in Hirst No . 2, found a violation of Article 3 of Protocol No. 1 (right to free elections) to the European Convention on Human Rights but no violation of Article 13 (right to an effective remedy) of the Convention.

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Analysis: Pet shock collar ban – barking, or a new era for rights?

Updated | The recent High Court decision upholding the ban on electronic training collars for domestic animals raises the interesting and topical issue of animal welfare and its role in EU law.

In her post on the case Catriona Murdoch discusses the various arguments involved,  from human rights to irrationality to proportionality under EU law, and the extent to which the language of human rights can be enlisted in the service of animal protection. Conor Gearty has analysed this topic in a persuasive paper published in 2008; here we  look at the question in relation to permitted justifications for impeding free movement for goods and services in the Community.

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Electric shock pet collar ban did not breach human rights

Petsafe Ltd, R (on the application of) v The Welsh Ministers [2010] EWHC 2908 (Admin) (16 November 2010) - Read judgment

The High Court has ruled that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs does not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law.

The Judicial Review application was brought by two interested parties, Petsafe Ltd and The Electronic Collar Manufacturers Association against the Welsh Ministers who after a lengthy consultation period dating from 2007, brought into force the Animal Welfare (Electronic Collars (Wales)) Regulations 2010 (SI 2010/934) (“the 2010 Regulations”) which banned the use of electric collars. The 2010 Regulations were created under the powers conferred to the Welsh Ministers under the Animal Welfare Act 2006 (“AWA 2006”). A breach of the 2010 Regulations is an offence punishable with up to 51 weeks imprisonment and/or a fine not exceeding Level 5 (£5,000).

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Government loses 7/7 inquests secret evidence appeal

The Secretary of State for the Home Department has lost an appeal against a ruling of 7/7 inquests coroner that secret evidence must be heard in public.

Lords Justice Maurice Kay and Stanley Burnton upheld Lady Justice Hallett’s ruling of 3 November. The judges will provide their full reasoning at a future date. In the meantime, the government may appeal. This represents another in a series of recent court rulings which have emphasised the importance of open justice.

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