Force-feeding, gay marriage and Article 8 (and a half) – The Human Rights Roundup

18 June 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

The news

This week has seen the Home Secretary Theresa May take on Article 8 – and the courts – with the announcement that she was seeking the backing of Parliament on the limits of Article 8, the right to private and family life, and that she would expect judges to “follow and take into account” the views of Parliament. In other news, the Church of England submitted its opposition to gay marriage in response to the Government consultation, which has now ended, a judge in the Court of Protection ordered that an anorexic woman should be force-fed, and the Supreme Court dismissed an application by Julian Assange to reopen his appeal against extradition.

by Wessen Jazrawi

Theresa May and Article 8

As reported by the Guardian this week, Theresa May is heading for a renewed showdown with the courts over the rights of foreign prisoners battling to avoid deportation after signalling that she would bring in primary legislation if judges failed to implement new rules. The Economist has also reported on the changes here.

Adam Wagner sets out on the UKHRB the Home Office plans for Article 8 of the ECHR and the fact that the changes are much wider than initially thought. The Home Office will ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors, in order to “unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life”.

The Free Movement blog has written a series of pieces on the developments. The first, published before the Home Office plans were published, asks whether Article 8 can be overriden. The second asks just how soft the law on deportation is right now, and concludes, not very. It makes a number of observations about the presumption in favour of deportation.

The third deals with the curious statement by Theresa May that “[t]his isn’t just about the numbers though…”. It comments rather wryly that observers of Government immigration policy might be rather surprised to hear this, given the Government has made no secret that the intention of its immigration policy is to reduce the numbers of immigrants. It suggests that the reason she made this statement is that reducing immigration is not a legitimate aim under Article 8(2) of the European Convention on Human Rights.

The fourth deals with the fine print of the Government’s Statement of Intent: Family Migration. The blog warns that most of the major changes will take place in less than a month’s time (9 July), and notes that under the new rules, deportation will almost always be proportionate.

Finally, the Sunday Telegraph named and shamed three “lenient” immigration judges for the role in deportation cases. See Adam Wagner’s post (now with fascinating comments from amongst others Professor Richard Moorhead) as well as Free Movement’s dissection, The Telegraph’s with hunt for lenient judges.

Gay marriage vs the Church of England

The response of the Church of England (CoE) to the Government’s Equal Marriage consultation is the subject of many posts this week. In the first of two posts on this topic on the UKHRB, Adam Wagner addresses the assertion by the Church that this will lead to the European Court of Human Rights forcing churches to perform gay marriages. He notes that while they might be right about a challenge, they have inflated the chances of that challenge succeeding. This accords with the legal opinion obtained by Liberty of QC Karon Monaghan of Matrix Chambers that contradicts reports that faith institutions may be forced to conduct same-sex marriages.

The second post on the UKHRB, by Paul Johnson, discusses why the CoE’s arguments are without foundation. He notes that the CoE pins its objection to the assertion that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage, and that it would lead to an unsustainable ‘clash’ between ‘mutually contradictory versions of matrimony within English law’. He argues that this is an obfuscation of the relationship between canon and statutory law that is long established and clearly defined in England, and there is no danger of the clash the CoE claim to fear. He has written a similar, fuller, post on the Jurist.

The BBC has published a Q&A on Gay Marriage to be found here, while the New Yorker has published an excellent article on the historical inevitability of same-sex marriage, noting that the same objections were once made to inter-racial marriages, which is linked to the fact that one’s attitude to these things is shaped by the era one grew up in, rather than one’s age.

Assange, Pupino and the Supreme Court

There have also been a number of posts this week on the Assange case. The eutopia blog discusses the fact that the Pupino case, which establishes that member states must interpret domestic law in conformity with the wording and purpose of framework decisions, does not bind the UK courts. This has also been dealt with by Alex Tinsley here on the UKHRB.

The Supreme Court blog published two posts, one sets out the decision of the Court while the other states that Associated Press was reporting that Julian Assange had lodged papers to reopen the appeal against his extradition. In yet more news, Obiter J reports that the Supreme Court has dismissed the application in somewhat terse terms, to be found here. Has the fat lady sung for Assange? Obiter J wonders whether he will challenge the decision before the European Court of Human Rights.

Secret trials and open justice

The roundup would not be complete without a post or two on the Government’s proposals to extend closed material procedures to other types of civil litigation.

Adam Wagner reports on the UKHRB  the response of the majority of Special Advocates, the gist of which is that the Government has still not made its case for the extension. The Special Advocates point out that, contrary to the Government’s claims that under the revised plans, the final decision would fall to a judge, the Bill requires the judge to accede to the Government’s application for a CMP if there is any material disclosure of which would damage national security, even if the judge considers that the case could and should be fairly tried under existing public interest immunity (PII) rules and there is no need for a CMP. Worrying. The Telegraph has also reported on this here.

The Lords Constitution Committee has published its report on the Justice and Security Bill here. It states that while it welcomes the improvements to the provisions since the Green Paper, it considers that scheme nonetheless contains 3 basic flaws: the executive is the sole gatekeeper, there is no judicial balancing, and the relationship between the closed material procedures and Public Interest Immunity is flawed.

Finally, see Adam Wagner’s post from yesterday on open justice: There is a democratic deficit in the courts… here’s how to fill it

The Snooper’s Charter

Obiter J reports on the Draft Communications Bill, dubbed the Snooper’s Charter, having been put before Parliament. He notes that these provisions are being introduced into a country in which the population is already among the most spied on in the world and that they are likely to cost at least £1.8 billion over 10 years.

Anorexic woman to be force-fed

The Independent reports on the ruling by a High Court judge that it is in the best interests of a woman who suffers from “extremely severe” anorexia to be fed against her wishes. He stated that the “resulting interference” with the rights of the woman, who lives in Wales and cannot be named for legal reasons, was “proportionate and necessary in order to protect her right to life”. See also The Guardian, Telegraph and BBC.

The full Court of Protection ruling from Mr Justice Jackson can be found here.

Other roundups

Excellent as always, the Law Think human rights roundup is here.

The courts

Marcus Ellis and Rodrigo Simms and Nathan Antonio Martin v. the United Kingdom 46099/06 & 46699/06 [2012] ECHR 813 (10 April 2012). Decision to allow key witness to give anonymous evidence still allowed for fair trial of gang murderers.

MGN Limited v. the United Kingdom – 39401/04 [2012] ECHR 993 (12 June 2012). European Court of Human Rights: UK must pay Mirror Group over £200k in damages over 2011 Naomi Campbell privacy case.

XX v Secretary of State for the Home Department [2012] EWCA Civ 742 (15 June 2012). SIAC decision to deport Ethiopian compatible with Articles 3,5 & 6 ECHR, rules Court of Appeal.

Gurung & Ors, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1629 (Admin) (15 June 2012).  Gurkha ex-servicemen loose appeal against refusal to grant them leave to remain in UK. This has been reported on by the BBC here.

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