Caesarean Escalation, Judges on Human Rights and Happy Birthday – the Human Rights Roundup
8 December 2013
Welcome back to the UK Human Rights Roundup, your regular seasonal sack-load of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
This week, bloggers tried to get to the bottom of the ‘forced caesarian’ case, a Supreme Court judge weighed in on the relationship between the UK and European law, and on Tuesday it’s the 65th birthday of the Universal Declaration of Human Rights.
In the News
Human Rights Day – this Tuesday
This Tuesday 10 December is Human Rights Day, with the Universal Declaration of Human Rights celebrating its 65th birthday.
The ‘forced caesarean section’
It’s likely that you’d have read the provocative news about a woman who was given a c-section whilst unconscious, and then had her baby put into care, first reported by the Telegraph’s Christopher Booker – his latest article is here.
Lucy Reed, of the PinkTape, examines the escalation of the story, expressing her concern that its essence ‘was not apparently based on fact at all…the crucial distinction between the justification for a medical procedure and the justification for a removal of a child into care is what has been blurred and subsequently lost in the reporting of this case’. She has a later post updating the matter, in which 2 of the 3 relevant judgments have been made available, noting that the affair is still ongoing. She also states that although it was the media furore that led to the judgments being made available, ‘it is spurious to suggest that this sort of headline led reporting is some kind of public service.’
On a similar vein, Carl Gardner likens the escalation to ‘flat earth news’ in which ‘a story appears to be true. It is widely accepted as true. It becomes a heresy to suggest that it is not true – even if it is riddled with falsehood, distortion and propaganda’. He then proceeds to analyse some of the agendas of the Telegraph journalist Christopher Booker and MP John Hemming, who were two of the original commentators. Both Gardner and Reed also emphasise the damage that has been caused by this reporting, unfairly smearing the social workers, NHS doctors, mentally ill people and vulnerable children. Also see Adam Wagner’s UKHRB post here.
Meanwhile, Elizabeth Prochaska at Birthrights examines the available judgments and expresses a number of concerns about the whole affair. For example, during the hearing of the judgment, the mother’s views do not seem to be considered in the court’s discussion. Also, there is no explanation in the judgment as to why the medical evidence that proposed that both mother and baby should be placed in a baby unit did not happen.
Finally, here’s a useful resource: Suesspicious Minds offers a beginner’s guide to the Court of Protection, which, as the Caesarean case demonstrates, regularly makes difficult and controversial decisions in cases involving people without mental capacity.
A gaggle of judges
To quote Mark Elliot at ‘Public Law for Everyone’, ‘lectures by senior judges on the relationship between the UK and European law are rather like the proverbial bus: you wait around for one, and then several arrive almost simultaneously.’
First up is Lord Judge, who retired last year as Lord Chief Justice. He has told the UCL Constitutional Unit that the Human Rights Act need to change to make it explicit that the British courts are not obliged to follow the rulings of Strasbourg. You can read his lecture in full here. He criticised Theresa May’s suggestion that ‘some judges choose to ignore Parliament and go on putting the law on the side of foreign criminals instead of the public’ and emphasised that a UK Court cannot ignore an Act of Parliament.
Dr Elliot analyses the speech in detail, explaining that for there to be an honest and effective debate on the issues at hand, ‘both sides must first acknowledge that, for the time being at least, European law has a constraining effect upon the United Kingdom that cannot be neutralised by reliance upon constructs of purely domestic constitution law. Only then can the appropriateness of that constraining effect be properly challenged or defended as the case may be’.
Meanwhile, Obiter J examines Lord Sumption’s lecture, ‘The Limits of Law’. Lord Sumption stated that, ‘Personally, if I may be allowed to speak as a citizen, I think that most of the values which underlie judicial decisions on human rights, both at Strasbourg and in the domestic courts of the United Kingdom, are wholly admirable. But it does not follow that I am at liberty to impose them on a majority of my fellow citizens without any democratic process’. The crux of Sumption’s argument seems to be that the current human rights protection system has had a detrimental effect on there being political solutions to rights problems. Obiter J argues against the notion that human rights should be addressed by political processes for, ‘political processes are not always minded to address matters of concern, especially where the matter affects a relatively small number of individuals.’
One can also read Lady Hale’s lecture ‘What the point in Human Rights?’ here in which she asks, ‘So what has gone wrong? Why is the [Human Rights] Act apparently so unpopular with politicians, the press and the public? Are they right?’ Hale explains that they aren’t and looks at the positive ways in which human rights law has impacted on people’s lives and buttressed against injustice. She concludes by considering what the consequences would be if the Human Rights Act were to be repealed.
And, finally, you can check out Lord Justice Laws’ Hamlyn Lecture, ‘The Common Law and Europe’ here, and Obiter J’s comments on it here.
In Other News
- The European Courts blog has their weekly Strasbourg Roundup. This week it covers a case looking at the access to essential information
- Sean Jones QC on 11kbw’s Employment Blog discusses the MBA ruling on Sunday working and discrimination – our analysis is here.
- Conflict of Laws looks at the Grand chamber of the ECtHR judgment in X v Latvia (application no. 27853/09). The case concerned the procedure for the return of a child to Australia, her country of origin, which she left with her mother at the age of 3 years and five months
- Dirk Voorhoof and Rónan Ó Fathaigh discuss, ‘Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria (OVESSG) . The ECtHR, looking at the right of access to public documents, has clarified and expanded on Article 10 of the ECHR. It is notable because it supports requests by journalists and NGOs to have access to official documents.
In the Courts
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European court gets involved with the Hague Convention, re child abduction
- MBA v London Borough of Merton [2013] EWCA Civ 1562 (05 December 2013) December 5, 2013
Court of Appeal dismisses discrimination appeal by Christian care worker told to work on Sundays, contrary to her beliefs
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IM (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1561 (05 December 2013) bailii.orgcases11 Court of Appeal: Continued detention of failed asylum seeker during prolonged hunger strike was not unlawful – did not breach Hardail Singh principles or Articles 2/3 ECHR
- Secretary of State for Foreign & Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (Admin) (27 November 2013) November 27, 2013
High Court overturns coroner’s Public Interest Immunity ruling in Litvinenko inquest. Coroner failed to pay sufficient regard to Secretary of State’s national security assessment.
- New judgment: Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 – UKSC blog – UKSC blog November 27, 2013
Mr Zoumbas unsuccessfully challenged the dismissal of his asylum claim, for the manner in which the Secretary of State dealt with the best interests of his children.
- Bull & Anor v Hall & Anor [2013] UKSC 73 (27 November 2013)November 27, 2013
Supreme Court dismisses appeal by Christian B&B owners who refused to give gay couple a double room. Indirect discrimination (3:2 majority) & direct discrimination (unanimous)
- Juncal v. the United Kingdom (dec.) – 32357/09 – Legal Summary [2013] ECHR 1164 (17/09/2013) November 22, 2013
Order for psychiatric confinement made as a result of finding of unfitness to plead: inadmissible
- ISMAIL v. THE UNITED KINGDOM – 48078/09 – Admissibility Decision [2013] ECHR 1153 (17 September 2013) November 22, 2013
Upcoming Events
To add 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 the topics covered by this blog.
- The Expectation that Business will Comply with Human Rights: Can the UK Government’s 2013 Policy Work in Practice and in Law?
- UCL CLP: Whither the margin of appreciation?
President Dean Spielman (ECHR): Whither the margin of appreciation?, UCL Faculty of Laws Events, Thursday, March 20, 2014 at 6:00 PM
- Continued detention pending removal of failed asylum seeker on hunger strike not unlawful – December 6, 2013 by Rosalind English
- Christian care worker loses Sunday working discrimination appeal – December 5, 2013 by Richard Wayman
- National Security trumps disclosure of Litvinenko secret documents, rules High Court – December 5, 2013 by Dominic Ruck Keene
- Human rights for homo sapiens’ closest relatives? – December 4, 2013 by Rosalind English
- ‘Imprecise’ injunctions against facebook unenforceable, says NI judge – December 3, 2013 by Rosalind English
- Lessons learned from the ‘Forced C-section’ case– Adam Wagner
- CJEU sets itself against secret ‘nod and a wink’ justice – David Hart QC, December 2, 2013
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British judges may try to ignore Strasbourg but they cannot ignore the UN Declaration?
On spiked I have argued that Lord Sumption is right: legal activism devalues the demos:
http://www.spiked-online.com/newsite/article/the_lawmakers_riding_roughshod_over_democracy/14364#.UqT4mHggHCQ