Monthly Archives: March 2011

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Happy first birthday!

On 31st March a year ago our blog was launched and to celebrate our entry into a second glorious year we thought we’d take a look at what we’ve done that pleased you most.

As with all internet sites, there are no prizes for guessing why Should people with low IQs be banned from sex? comes out with almost the highest number of hits, and no doubt some of the visitors to that page would have gone away disappointed, but we promise it is a fine piece on a very interesting issue. And the high score achieved by our post Brititsh airways strike and human rights – the union strikes back has less to do with law than travellers’ anxieties about their scheduled flights.
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Expert witnesses no longer immune from being sued

Jones v Kaney – read judgment/press summary. The Supreme Court has ruled that the an expert giving advice in the course of litigation is no longer immune from being sued in negligence.

This case,  which had been granted a “leap-frog certificate” to go straight from the Divisional Court to the Supreme Court, overturns a long-established principle that expert witnesses should be protected from legal action on the basis of public policy.  The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence)  contravenes the European Convention on Human Rights. The right to a fair trial under Article 6 impliedly entitles an individual, whose position in civil proceedings has been compromised by negligent advice, to take action against that expert to compensate for the damage caused.

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Purpose, policy and publication: Analysis of Lumba ruling

Lumba v Secretary of State for the Home Deparment – a case of driving government policy further underground?

We have already reported on this appeal by three foreign nationals who have served sentences of imprisonment in this country (“FNPs”). They were detained pursuant to Schedule 3 of the Immigration Act 1971 and their challenge to the legality of this detention was successful. But the appeal was secured by a majority of 3 with strong dissenting opinions which merit close consideration here.

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Open justice and crosses to bear – The Human Rights Roundup

It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.

In the news:

James Wilson, writing in the Halsbury’s Law Exchange blog, examines Lord Neuberger’s discussion relating to the form and content of legal judgments, delivered in the 2011 Judicial Studies Board Lecture “Open Justice Unbound“. Whilst agreeing with many of the points Lord Neuberger made, Wilson highlights the difficulties in making judgments comprehensible to members of the public. Click here to see Adam Wagner’s post on ‘open justice’ and the accessibility of the law, a theme which is developed by Lucy Series in The Small Places blog.

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Squaring equality with religion – Aidan O’Neill QC

The relationship between the expression of religious beliefs and practice and equality law is a fraught one, and particular difficulty has been experienced in the matter of the application of the law outlawing discrimination.

Equality law, as currently interpreted, treats the six prohibited grounds of discrimination – age, disability, race, religion, sex (including transgender status) and sexual orientation – as being of equal weight and standing; there is no hierarchy among these grounds.
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Reform of Strasbourg Court: a modest proposal – Aidan O’Neill QC

The coalition Government has appointed an independent Commission to investigate the case for a UK Bill of Rights.  This Commission has also been tasked with providing advice to the Government on the possible reform of the European Court of Human Rights – as part of on the ongoing Interlaken process – ahead of and following the UK’s coming Chairmanship of the Council of Europe.

One does not have to be human rights sceptic to accept that there is an unequivocal case for further reform of the Strasbourg Court because, unless something is done, the current system for human rights protection at a European level is in danger of imminent collapse. Continue reading →

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Blow to Parliament Square protest camp

The Mayor of London v. Brian Haw & others [2011] EWHC 585 (QB) - read judgment.

The High Court has ruled that it would not be a breach of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) to grant a possession order in respect of Parliament Square Gardens (“PSG”) and an injunction compelling protesters to dismantle and remove all tents and other structures erected on PSG. The potential effect of this might be to remove Brian Haw, the peace campaigner who has been protesting almost non-stop outside Parliament for the best part of a decade.

This is the latest in a long-running series of cases exploring the extent of the freedom to protest. We have analysed the previous court decisions about the Parliament Square protesters here and here. The issue of restrictions on freedom of assembly and freedom of expression has been a hot topic in recent months more generally, having also come up recently in the contexts of the student protests last year, political asylum seekers and hate speech.

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Benefits tourism in the EU – Analysis

The case of Patmainiece  v Secretary of State for Work and Pensions was reported in an earlier post.  Here we discuss the underlying rationale for the decision and ask whether the finding that the nationality requirement amounted to mere indirect discrimination was a correct “fit” with EU principles of free movement.

Article 18 (now article 21 TFEU) provides:

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States

However a different regime applies to non-economic actors as opposed to workers.  Free movement of workers is one of the fundamental underpinnings of the internal market on which the EU is based. The main EU Directives and Regulations giving effect to the right to free movement of workers are Regulation No 1612/68 on freedom of movement for workers within the Community (as amended by Directive 2004/38/EC) and Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the member states.  But the rights of those who are economically inactive to reside for more than three months in other member states is subject to certain conditions, set out in the 2004 Directive; they must
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Child’s identity to remain a secret

A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)- read judgment

A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.

The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules.  The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified.  Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.

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Can the Media use Parliamentary Privilege to Circumvent Reporting Restrictions in Privacy Injunctions? – Henry Fox

The recent claim in Parliament by Liberal Democrat MP John Hemming (pictured right) that Sir Fred Goodwin has obtained an injunction to prevent him being identified as a banker has reignited interest in the suggestion that the media can in some way sidestep the secrecy of an injunction through the indirect use of Parliamentary privilege. The incident is reminiscent of Paul Farelly’s revelation to Parliament that Trafigura had obtained a so-called “super-injunction” against the Guardian in October 2009.

In his blog on the Guardian website, Roy Greenslade asks: “Have MPs, and the media, found a way to overcome super-injunctions?” This question is worth considering from a legal perspective. This post will attempt to answer it by focussing on two areas: (i) the ability of MPs to disclose confidential information in Parliament and (ii) the ability of the media to report on these disclosures in order to evade liability for contempt of court.

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Secret foreign nationals detention policy was “serious abuse of power”

Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) – Read judgment / press summary

The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy.  Two convicted prisoners were therefore unlawfully detained.

This  fascinating 6-3 majority decision could be important in respect of setting the boundaries for the courts’ scrutiny of executive powers. It is also, for the record, not a decision which is based on human rights. The appellants are both convicted criminals (and foreigners too), so the court may be criticised for upholding their human rights despite their criminal actions. But this is a case decided on traditional public law grounds, which preceded the human rights act by many years. As Lord Hope put it:

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Where do I belong?

AS v Secretary of State for the Home Department [2011] EWHC 564 (Admin) - Read Judgment

In a strange case, reminiscent of the film The Terminal in which Tom Hanks plays a person unable to leave an airport because he is temporarily stateless, an Applicant lost a judicial review application despite being unable to enter the UK lawfully and unable to acquire travel documents to return to Kuwait.

This was an application for judicial review of the decision by the Secretary of State to refuse to treat further representations by a failed asylum seeker as a fresh claim. The Applicant claimed to be a Bedoon, a member of an ethnic group mostly living around the borders of Iran, Iraq, Syria, Saudi Arabia and Kuwait. The Kuwaiti government is not permitting Bedoon outside Kuwait to return there, and since the 1980s the country has taken away from the Bedoon a great number of rights and benefits. It was accepted by both parties that in Kuwait, the Bedoon are at risk of persecution.

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Open online justice – what do you think?

As the Cearta.ie blog reminds us this morning, the late Lord Bingham saw accessibility, intelligibility and predictability as central requirements for the effective rule of law. It is also central to the human right to a fair trial. On that theme, Lord Neuberger, the head of the court of appeal, gave a speech last week which sought to push that agenda forward in the internet age.

But what comes next? In order to push forward the open justice agenda, ideas will have to be practically worked through, and funded. Please use the comments section of this post to let us know what you think, what you make of the ideas in Neuberger’s speech and whether you have any ones of your own.

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Rights in flux – The Human Rights Roundup

It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.

In the news

As the UK government is requesting the referral of Greens and M.T. v UK to the Grand Chamber, with the intention that the European Court of Human Rights reconsiders the issue of prisoner voting, the Committee of Ministers, vested with the responsibility to oversee the enforcement of the Court’s judgments, has put on hold its ongoing review of the UK’s compliance with the decision in Hirst v UK (No. 2).  This comes at a time when a senior human rights academic, as well as other states (according to the PoliticsHome blog), are also questioning the Court’s legitimacy. The background to these controversial decisions can be found in Adam Wagner’s post.

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What was the point of the European Convention on Human Rights? – Dr Ed Bates

The European Convention

 

On 8 March 1951, sixty years ago this month, the UK ratified the European Convention on Human Rights (ECHR). Two things are often said about what was expected of the Convention back in 1951.

First, it was only ever intended to establish a system that would protect against the types of severe human rights violations witnessed during the War. Consequently (and secondly), the Convention system was never intended to become what it has today, its Court now sometimes acting like a type of Supreme Court for Europe in the field of human rights.

 

Both points are relevant to current day debates about the legitimate role of the Strasbourg Court. To what extent then are they accurate?

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