Trial by Jury, Gay Adoption, Legal Awards Season – The Human Rights Roundup

24 February 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular booster shot 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.

Unsurprisingly, Theresa May’s views on the role of immigration judges sparked much debate this week – yet haven’t stopped the judges making findings that Immigration Rules are unlawful.  The consequences of the dismissal of the Pryce jury are still playing out, while the Strasbourg Court has made an important ruling on discrimination based on sexual orientation.  Keep an eye out on some new events advertised this week, and various updates in the legal blogging world.

by Daniel Isenberg

In the news

Blogs and Awards

Sad news for the world of online legal journalism with the announcement that Guardian Law is to abolish its position of editor and become ‘semi-automated’.  The pill, however, is sweetened with the news that our very own UKHRB has been nominated for the Legal Journalism Award at this year’s Halsbury Legal Awards.  Nominations are also open for the Legal Aid Lawyer of the Year, for which information can be found here.

Theresa May v Immigration Judges & Other Immigration News

Following Adam’s UKHRB post last week, the key news item has been the fallout from Theresa May’s public attack on immigration judges in last week’s Mail on Sunday.  T

ObiterJ notes the “major inaccuracies” in Mrs May’s article, particularly that in fact no immigration judge actually considers Article 8 (right to respect for family life) to be an absolute and unqualified right.  The blogger also makes very clear that the Immigration Rules, although voted upon by one chamber in Parliament, do not constitute primary legislation, and accordingly will not be treated by judges as such.

The Free Movement blog raises the possibility that Parliament may, in light of this incident, modify the Human Rights Act, and questions with caution that if foreign criminals become a first exception, who might follow?  The Spectator also nods in the direction of repealing or amending the Human Rights Act, though sets Mrs May’s comments in the current political context of the Eastleigh by-election, “where immigration may play as an issue”.

The Upper Tribunal was, however, seemingly not put off by Theresa May’s views, as displayed by a two-part post on the Ogundimu case relating to the new rules pertaining to Nigeria.  The first points to the UT’s finding that the First Tier Tribunal made a “serious error of law” by finding that “Article 8 was not even engaged.”  The second goes on to explain the Tribunal’s finding that deportation was not a proportionate response to the legitimate aim of preventing crime, given the appellant’s family circumstances.  The Court of Appeal has also found the country guidance for Burma to be flawed, a finding which has essentially reopened all Burmese asylum cases.

Sexual Orientation and Reform at the ECtHR

Paul Johnson briefly summarises the decision of the ECtHR in X and Others v Austria on the ECHRSO blog, before turning his eye to deeper analysis on the ECHR blog.  The Court found that Austrian domestic law did discriminate against same-sex couples when it comes to ‘second parent [step-parent] adoptions’, breaching Article 14 in conjunction with Article 8 of the ECHR.  Johnson’s view is that the Court’s conclusion and method are consistent with an established line of case law, but he criticises the continued view of the Court that gives states a wide ‘margin of appreciation’ under Article 12 to maintain a “heteronormative” view of marriage.

In a busy week for the ECHR Blog, it also points to the Council of Europe’s new webpage that brings together all the relevant material associated with reform of the ECtHR.  For a digestible background piece, see the Council of Europe’s page on the history of the reforms.  The blog also provides a useful collation of commentary of the Court’s earlier decision in El-Masri.

The Pryce of Trial by Jury

Expect some more on this next week, but the fallout from the dismissal of the jury in the Vicki Pryce case is starting to animate the pens of legal commentators.  Mark Elliott provides some useful background to many of the relevant issues at play, including his own suggestion that perhaps juries ought to be expected to give reasons for their decisions.  Richard Moorhead, however, suggests that we are asking the wrong questions: it is not a matter of whether trial by jury is an appropriate method of dispensing justice, but rather we should focus on how judges direct said jurors. Meanwhile, Joshua Rozenberg and David Allen Green discuss the issue in a joint piece in today’s Observer.

Also in the News

Just a quick blitz through some other items making this week’s headlines, starting with a couple of pieces on children and the law.  David Burrows questions whether those who provide information on alleged abuse ought to be entitled to public interest immunity, with the Supreme Court finding that the right to a fair trial overrides the concomitant right to privacy.  Meanwhile, Family Lore outlines the recent judgments of the Supreme Court in L and B and in J, with links to case summaries.

Finally, some interesting takes on matters of public law: Brodies LLP have undertaken research into judicial review in Scotland, noting in particular the low success rate of applications and relatively steady rate of applications.  Andrew Le Sueur on the UK Constitutional Law Blog observes that the Wikipedia article on the UK constitution is broadly written by non-experts, and invites fellow experts to make contributions as a method of public education.  The UKSC blog provides a useful outline of a speech given by Lord Reed on an ‘insider’s’ view of the Supreme Court, with some fascinating insights into the mechanisms of the Court.  Finally, in light of the government’s decision not to implement aspects of the Equality Act, and to repeal others, Sir Bob Hepple QC indicates the vital role to be played by the Equality and Human Rights Commission with its remaining resources.

In the Courts

X and Others v Austria (Application no. 19010/07) Austrian domestic law preventing same-sex couples carrying out ‘second parent’ adoptions breaches Articles 14 and 8.

Durani v Secretary of State for Home Department [2013] EWHC 284 (Admin) 21 day immigration detention of minor unlawful due to obviously flawed local authority age assessment, rules High Court

Horncastle and Others v United Kingdom (Application no. 4184/10) Horncastle case returns to the ECtHR for questions to parties

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Human Rights Law in Practice: Policy, Politics and Potential Saturday 9th March, 09:30 – 17:00, Freshfields Bruckhaus Deringer
• The Economics of Killing Tuesday 5th March 2013, 18:00 – 20:00, Warwick University
• Public Law Project Wales Conference 2013 Thursday 11th April 2013, 09:30 – 17.30. Venue: Cardiff University
• International Graduate Legal Research Conference King’s College London, April 8-9, 2013 (including 2 human rights panels and one on environmental law).
• Justice and Security Bill – Closed hearings in civil cases – ALBA 05 March 2013, Rt Hon Kenneth Clarke QC MP and Shami Chakrabarti, chaired by Lord Justice Lloyd Jones – ALBA members only, booking required
• The Power of Literature and Human Rights Saturday 2 March 2013, 11am-12.30pm Venue: LSE Wolfson Theatre, New Academic Building

UKHRB posts

• What do *you* think is the way forward for human rights in Northern Ireland? – February 22, 2013 by Professors Brice Dickson and Colin Harvey
• Badmouthing the pope in heated news room does not amount to harassment – February 20, 2013 by Rosalind English
• The more things change… – February 19, 2013 by Adam Wagner
• A human rights reality check for the Home Secretary – February 18, 2013 by Dr Mark Elliott
• Prospective adoptive child will not be taken from blind woman, for now – February 18, 2013 by Richard Mumford
• Eating horse – and where our language comes from – February 18, 2013 by David Hart QC