A reform too far? The human rights roundup
14 March 2011
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Melinda Padron
In the news
The government announced that a commission would be set up to look into whether the government should bring in a bill of rights in light of all the controversy surrounding the ECtHR. The commission is reported to be composed of experts such as Lord Lester, Helena Kennedy QC and Martin Howe QC, and its merits are already being called into question.
There have been two strong reminders of the importance of maintaining compliance with and membership to the European Court of Human Rights: Aidan O’Neill QC wrote an excellent piece questioning the legal merits of some of Dr Pinto-Duschnisky‘s proposals in his report Bringing Rights back home: making human rights compatible with parliamentary democracy in the UK; while Sir Konrad Schiemann, judge of the Court of Justice of the European Union, made a strong case that by abiding by its decisions, the UK would be serving the greater good of stability amongst its members.
Also related to the idea of bringing powers back to parliament was this week’s government decision to remove a controversial clause of the Public Bodies Bill. The clause allowed for the broad exercise of ‘Henry VIII powers’ whereby government ministers could repeal primary legislation without parliamentary scrutiny by way of modifying, merging or abolishing some fundamental public bodies.
Lord Neuberger’s committee, set up to examine the issues raised by superinjunctions, is expected to publish its report within the next month. In light of this, last week we saw the International Forum for Responsible Media Blog and Joshua Rozenberg comment on how the courts are applying this remedy against the media; and in the imminence of Lord McNally’s draft Defamation Bill, Hardeep Singh attempts to make a case for the ‘no win, no fees’ agreements.
Last week we also saw a Southampton tribunal decide that a man’s animal rights beliefs were philosophical beliefs akin to religious beliefs in an unfair dismissal claim, rejecting an argument posed by the employers that the employee’s anti-hunting beliefs were politically motivated by class wars.
Legal bloggers David Allen Green, Mike Semple Piggot (Charon QC) and Carl Gardner recorded the second edition of their excellent podcast, Without Prejudice, in which they discuss some of the week’s important legal news, joined by special guest Catrin Griffiths of The Lawyer. They discuss the implications of the ECJ Insurance case, Women in the Law, Sexism, Contempt of Court and Libel Reform, The podcast can be listened to here.
Finally, the Equality and Human Rights Commission (EHRC) withdrew an appeal on behalf of a gay couple who were refused a double room at a Cornish hotel, calling the decision to seek the appeal an “error of judgment” on the part of its legal team.
In the courts
CPS -v- Mohammad Razaul Haque and Emdadur Choudhury
Brynmawr Foundation School, R (on the application of) v Welsh Ministers & Anor  EWHC 519 (Admin) (09 March 2011)
Judicial review of Welsh borough council’s plans to reform 6th form education in the area is rejected
AC, R (on the application of) v Berkshire West Primary Care Trust & Anor  EWCA Civ 247 (11 March 2011)
Refusal to provide transgender woman breast surgery on NHS upheld by court of appeal. Our post coming shortly. You can read Adam Wagner’s note on the 2010 High Court decision here.
The Secretary of State for the Home Department v Hassan Abdi and Afrah Khalaf  EWHC 3083 (Admin)
The Court of Appeal decided that time spent appealing against deportation counts in assessing whether an individual has been detained for an unreasonably long period. See Yaaser Vanderman’s commentary to the judgment.
Kiyutyn v Russia, European Court of Human Rights
The refusal of a residence permit to an Uzbek national solely because he was HIV-positive was in violation of the European Convention of Human Rights. See the ECHR Blog and the PHD Studies in Human Rights blog for a more detailed account. The ECtHR press release is here and the judgment here.
National Union of Rail, Maritime and Transport Workers v Serco (t/a Serco Docklands)  EWCA Civ 226
Aslef and RMT rail unions have succeeded in challenging injunctions that blocked their strike action over small faults in procedure. The Court of Appeal has ruled that minor mistakes in balloting, such as polling non-constituent workers, did not justify the injunctions that had prevented them from taking strike action. See Rosalind English’s post about the decision.
- Details of human rights reform group emerge, but will it have teeth? March 10, 2011 Adam Wagner
- Bringing Rights Back Home – Again? – Aidan O’Neill QC March 9, 2011 1 Crown Office Row
- Poppy burning, free speech and the £50 question March 9, 2011 Adam Wagner
- Right to strike given a boost by Court of Appeal March 8, 2011 Rosalind English
- Avoiding contempt of court: Tips for bloggers and tweeters March 7, 2011 Adam Wagner
- Buying time on prisoner votes – The Roundup March 7, 2011 Graeme Hall
- Balancing transparency with ‘secrecy’ in the Court of Protection – Lucy Series March 7, 2011 1 Crown Office Row
- Warning for bloggers and tweeters as newspapers found guilty of contempt of court March 3, 2011 Adam Wagner
CASE No. 6
1108th meeting – 10 March 2011
– 1 case against the United Kingdom
74025/01 HIRST No. 2, judgment of 06/10/2005 – Grand Chamber
Interim Resolution CM/ResDH(2009)160
1. recalled that, in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled that at the Deputies’ 1100th meeting (November – December 2010), the United Kingdom authorities confirmed that they would present draft legislation in the near future, and noted that they remained committed to implementing the judgment;
3. noted the consideration of the issues raised in the judgment by Parliament on 11 January 2011 and 10 February 2011, as referred to by the United Kingdom authorities in their submission to the Committee (see DD(2011)139);
4. noted further that on 22 February 2011 the United Kingdom government requested a referral to the Grand Chamber of the pilot judgment Greens and M.T. which reiterates the conclusions in Hirst No. 2 and establishes a timetable for the United Kingdom authorities to propose legislation in order to execute both judgments;
5. decided, in light of the above, to resume consideration of the questions raised by the judgment once the referral request has been considered.
I have so far been unable to find the UK submissions to the Committee of Ministers as I cannot find this document referenced DD(2011)139.
It is disturbing that the Committee of Ministers has failed to supervises execution of the judgment in Hirst v UK (No2). Why it is waiting for the outcome of a referral in Greens and MT v UK is beyond me. The cases are 5 years apart and it is because the Committee of Ministers has failed to do its duty that 100,000 convicted prisoners have now suffered human rights abuse.
My guess (and this is just my personal opinion) would be that the members of the Council would like to see their respective states treated with the same degree of deference/patience were they to experience such strong political rejection to a ruling of the ECtHR.
One can just hope this does not affect how the Council will deal with other controversial rulings in the future.
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