Category Archives: Politics / Public Order

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Myths and Realities about Equal Marriage

gay_marriage_cake_300The Marriage (Same Sex Couples) Bill is back before Parliament today for the “Report Stage”. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.

I have written a new article for the New Statesman on some of the myths and realities surrounding the debate - you can read it here. It’s all a bit complicated, as you might expect.

Our previous coverage is linked to below. Hopefully, party politics won’t end up derailing this important bill. As the New Yorker recently predicted:

One day, not long from now, it will be hard to remember what worried people so much about gay and lesbian couples committing themselves to marriage.

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Apocalypse soon? The UK without the European Convention on Human Rights

HRLA speakersUpdated, 19 May 2013 | Last night, lawyers, academics, NGOs and even the President of the Supreme Court gathered in a basement conference room in central London.  Their purpose was to discuss the UK “without Convention Rights”, a possible future that some might view as post-apocalyptic, and others as utopia.  Either way, given recent political developments, the event could not, in the words of the Chair, Lord Dyson, “be more timely or topical.”

The seminar was hosted by city law firm Freshfields Bruckhaus Deringer LLP and presented by the Human Rights Lawyers Association and the Bingham Centre for the Rule of Law.  Lord Dyson, who is the Master of the Rolls (the second most senior judge in England and Wales), introduced three speakers:

  • David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation since 2011;
  • Professor András Sajó, the Hungarian Judge at the European Court of Human Rights; and
  • Professor Hugh Corder, Professor of Public Law at the University of Cape Town.

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The problem of ‘rebalancing’ Article 8

Queen delivers speechI have written an article for the New Statesman  on the announcement in today’s Queen’s Speech about Article 8 ECHR. It is here. Enjoy!

For more, see:

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More major rule of law changes, more dodgy statistics used to justify them

9780312421274“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of  the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013. 

The  reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to

  1. removing legal aid for prisoners challenging the way they are treated in prison,
  2. reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
  3. the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
  4. amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
  5. introducing price competition into the criminal legal aid market,
  6. reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
  7. reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
  8. reducing fees to experts in civil, family and criminal cases by 20%.

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Government U-turn on EHRC’s General Duty – Neil Crowther

EHRC-logoThe Government abandoned its plans to repeal the ‘general duty’ of the Equality and Human Rights Commission (EHRC) under the Equality Act 2006 (the Act) last week, but insisted upon amendments to the EHRC’s duty to monitor progress on equality and human rights.

The general duty in section 3 of the Act sets out why the EHRC exists and the aims towards which it should be working, namely that it:

shall exercise its functions…with a view to encouraging and supporting the development of a society in which

(a) people’s ability to achieve their potential is not limited by prejudice or discrimination,

(b) there is respect for and protection of each individual’s human rights,

(c) there is respect for the dignity and worth of each individual,

(d) each individual has an equal opportunity to participate in society, and

(e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

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Denounce the ECHR to deport Abu Qatada… You cannot be serious! – Richard A. Edwards

mcenroeThe Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.

Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?

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Judicial Review reform: What does “totally without merit” mean? – Paul Bowen QC

Chris Grayling, justiceWhat is the test the Court should apply in deciding whether an application is ‘totally without merit’?  The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’.  A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.

This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.

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Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses

shell460US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al - Read Judgment 

In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices. 

The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag.  The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).

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Margaret Thatcher and the Constitution – Richard A. Edwards

Margaret ThatcherThe consequences of Margaret Thatcher’s administration have been long lasting. In many areas of national life Thatcher took the British Bulldog by the scruff of the neck and house-trained it. In the context of the constitution her impact was no less significant.

But Lady Thatcher did not set out to reform the constitution. Although the 1979 Conservative Manifesto raised the possibility of a Bill of Rights nothing came of this proposal during her administration.  In reality Margaret Thatcher was a traditional Conservative who believed in a strong state and had an aversion to any constitutional reform that might limit it. Yet her administration has left long lasting changes to the law and constitution. In fact there are too many to comfortably write about in a quick blog though a number of developments are of particular interest.

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Last week not a good one for Theresa May: not just Abu Qatada


132957J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

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Court of Appeal rejects latest attempt to deport Abu Qatada

121113AbuQatadaMay_6898438Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment

The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”.  Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May. 

In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”.  Read my post on that decision here.  Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.

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Ban on ‘ex-gay, post-gay and proud’ bus advert criticised but lawful

262332-anti-gay-london-bus-adverts-promoting-gay-cure-techniques-bannedCore Issues Trust v. Transport for London 22 March 2013 [2013] EWHC 651 (Admin) – read judgment.

In a judgment which is sure to provoke heated debate, the High Court has today ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.

The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which describes its aim as “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression” (see website here). It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which was in support of the proposal to introduce same-sex marriage and read “SOME PEOPLE ARE GAY. GET OVER IT!”

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Will the Public Sector Equality Duty survive the Red Tape Challenge? – Neil Crowther

cut-red-tape-challengeIn May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge.  The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes.  It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities. 

The Review has recently launched a call for evidence, with a closing date of 12th April 2013.  The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’

The Equality and Diversity Forum has produced a helpful briefing on the Review.

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Exclusion of Iranian dissident lawful, says Court of Appeal

Maryam-Rajavi2009R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013  [2013] EWCA Civ 199 - read judgment

 Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.

In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants. Continue reading →

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What will happen to human rights after the next election? – Roger Smith

The Anglesea pub in west London, which was a polling station for the 2010 general election.This post by Roger Smith was originally the text of a speech to the Working Men’s College and is reproduced here with permission and thanks.

Human rights will be a politically live issue at the next election. Leading on the issue will by the Conservative Party, urged on by elements in the media such as the Daily Mail with a commercial interest in resistance to any law on privacy deriving from human rights. So, the Working Men’s College has done well to identify this topic for exploration. This evening is a celebration of the college’s stated aim to ‘engage positively with the past, while finding new ways to pursue its founders’ aims into the 21st century.’

The pace on human rights is being forced by Theresa May, seen by some as the Tory leader in waiting. She made it clear at the weekend that both the HRA and the European Convention which it introduces into domestic law are under fire:

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