Category: Article 13 | Effective remedy

Judicial review golden goose has narrow escape in Supreme Court

24 June 2011 by Rosalind English

R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent); R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) [2011] UKSC 28, 22/6/2011 – read judgment; press summary here

Unappealable decisions of the Upper Tribunal are still subject to judicial review by the High Court, but only where there is an important point of principle or practice or some other compelling reason for the case to be reviewed. Unrestricted judicial review in this context is unnecessary and a waste of resources.

This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three was the extent to which decisions of the Upper Tribunal,  established under the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”), are properly subject to judicial review by the Administrative Court in England and Wales and the Court of Session in Scotland.
In all of them the claimant failed in an appeal to the First-tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In all three the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.
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The EU Charter: are we in or out?

1 March 2011 by Rosalind English

Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice.

Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum.  So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.

First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter  are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007.
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Football “rioter” Garry Mann loses Euro human rights appeal

23 February 2011 by Adam Wagner

Garry Norman MANN v Portugual and the United Kingdom – 360/10 [2011] ECHR 337 (1 February 2011) – Read judgment

Garry Mann, a football fan who was convicted to two years in a Portuguese jail for rioting after an England match in 2004, has lost his appeal to the European Court of Human Rights against his conviction and extradition.

Mann has always denied taking part in the riot. The full background to the case is set out here. The case has been subject to a number of court hearings in the UK, including two judicial review hearings against his proposed extradition to Portugal to serve his prison sentence. He has also already had a claim in the European court rejected.

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US ten years behind Britain on gay soldiers

20 December 2010 by Adam Wagner

Updated | Following the US Senate’s vote to repeal the ban on gay soldiers serving in the US military, it is interesting to compare the situation in the British Army, where gay soldiers have been allowed to serve since 2000.

The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.

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Media must be able to challenge court reporting ban

7 December 2010 by Adam Wagner

MacKay & BBC Scotland v. the United Kingdom (Application no. 10734/05) – Read judgment / press release

The European Court of Human Rights has ruled that the failure of the Scottish court system allow the BBC  to challenge a court reporting ban was a violation of rights to freedom of expression and information as well as to an effective remedy.

Mr Mackay, a retired journalist, and the British Broadcasting Corporation (BBC) in Scotland, challenged a 15 February 2005 order prohibiting the publication of any report of the trial of two men accused of importing and supplying controlled drugs. The order arose in the midst of an appeal hearing brought by the Crown against a previous judge’s decision to stay the hearing. The BBC faxed the court asking to be heard on the order, but were told they could not be heard until the next day. The order became final.

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