Monthly News Archives: April 2011
12 April 2011 by Rosalind English
R(New London College) v Secretary of State for the Home Department [2011] EWHC 856 (Admin) – read judgment
When she introduced the latest changes to the points-based system for allowing entry into the United Kingdom the Home Secretary Theresa May said that “this package will stop the bogus students, studying meaningless courses at fake colleges…it will restore some sanity to our student visa system” (March 22 2011)
Whether these changes will alleviate any of the difficulties of applying the criteria to institutions that provide study courses for foreign nationals, only time will tell. This case illustrates some of these problems of enforcement.
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11 April 2011 by Melina Padron
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.
by Melinda Padron
In the news last week:
At a time when the sustainability of the principle of Parliamentary sovereignty in modern British society is being called into question, Lord Neuberger gave a speech entitled “Who are the masters now?”, where he made a case for Parliamentary supremacy.
He suggested the principle remains absolute for five main reasons:
(1) Parliamentary sovereignty is the cornerstone of our constitutional settlement;
(2) Parliament does not want judges to have the power to overrule statutes (and he added that neither do judges);
(3) arguments to the contrary are far removed from reality that they undermine the main proposition they seek to support;
(4) even the strongest advocates of limiting Parliamentary sovereignty accept that such could only be done in the most exceptional of circumstances;
(5) we live in a world where democratic accountability is of the essence, and as such it would be undesirable for unelected judges to exercise powers to limit Parliament.
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11 April 2011 by David Hart KC
A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.
In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000.
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11 April 2011 by Adam Wagner
The US State department has released its 35th annual Country Reports on Human Rights Practices relating to over 190 countries. This includes a report on the United Kingdom, which can be access here and here (pdf).
The reports are mandated by US statute and require that the Secretary of State shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, “a full and complete report regarding the status of internationally recognized human rights”, as set forth in the Universal Declaration of Human Rights. The UK Foreign Office has also recently published its own report into human rights around the world, which only deals with “countries of concern”, and as such doesn’t mention the US once in 355 pages .
Secretary of State Clinton introduced the US reports, saying:
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8 April 2011 by Adam Wagner
The Master of the Rolls Lord Neuberger is either the busiest judge in England or relies heavily upon his assistant John Sorabji for his consistently thoughtful and excellent speeches. Either way, he has given another fascinating speech. Who are the masters now?
The question posed in the title is paraphrased from one asked in Parliament in 1946, which itself paraphrased Humpty Dumpty (see para 3). Neuberger used the second annual Lord Alexander of Weedon lecture (Lord Philips gave the first) to speak about the topical but, as I have posted, slippery issue of Parliamentary sovereignty. So, who is the master: the unelected judge or the elected politician?
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7 April 2011 by Adam Wagner
BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) – Read judgment
Another control order has been ruled unlawful and quashed by the court of appeal, on the basis that the evidence relied upon to impose it was “too vague and speculative”.
Control orders are a controversial anti-terorrism instrument (see this post) which are soon to be replaced with Terrorism Prevention and Investigation Measures. These will impose less onerous restrictions upon a terrorist suspect. No doubt they will be approached by the courts at some stage. In the meantime, there are still 9 control orders in operation under the current regime. One has just been quashed by the court of appeal.
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6 April 2011 by Rosalind English
Le Roux and others v Dey (South African Constitutional Court) – read judgment
With the new libel reform proposals doing the consultation rounds it is enlightening to see how other jurisdictions strike the balance privacy and dignity on the one hand, and freedom of expression on the other.
A recent case before the South African Constitutional Court raised two interesting issues: the extent to which liability for defamation should be reduced where children are concerned, and the question whether it should be actionable at all to refer to someone in terms of the condition protected by the Constitution – sexual orientation, for example.
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5 April 2011 by Adam Wagner
Are you a current or recent law student looking for funding to undertake a human rights project in the UK or abroad? The Human Rights Lawyers Association, of which I am a committee member, has £6,000 to give away for its 2011 bursary scheme.
The closing date for applications is 8 May 2011. For full details, click here or continue reading.
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5 April 2011 by Guest Contributor
The decision of the Supreme Court in Jones v Kaney (see earlier post by Rosalind English) removes the immunity previously enjoyed by those who have acted as experts from suit by their former clients. To understand the significance of the decision, a number of important points should be kept in mind.
- The immunity from suit for damages for a former client in respect of the retained expert’s activity in a civil action was already a limited one. In Palmer v Durnford Ford, [1992] QB 483, the High Court held that an expert witness was not immune from suit in respect of work done primarily for the purpose of advising the client.
- Expert witnesses have, since the decision of the Court of Appeal in Meadow v General Medical Council [2007] QB 462, been liable to disciplinary sanction in respect of their activity and evidence as experts in courts and tribunals. That flows from the public interest in the fitness to practice of the professional (particularly, but not only, a medical practitioner).
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5 April 2011 by Isabel McArdle
Commission for Equality & Human Rights v Griffin, Lumby, Darby
[2011] EWHC 675 (Admin) Read judgment
The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law.
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4 April 2011 by Melina Padron
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.
by Melinda Padron
Last week the UKHRB celebrated its 1st birthday! Rosalind English wrote a commemorative piece revealing which posts of the past year have pleased our readers the most.
In the news last week we saw the government’s response to the 26 March cuts protests. The Law and Lawyers blog discussed Theresa May’s announcement that the Home Office is looking into increasing police powers in relation to police protests. Measures could include banning the wearing of masks or balaclavas, and banning known hooligans from participating in rallies and marches – a practice already adopted to combat football hooliganism. The article also highlighted how the massive protest of 26 March did not seem to be calling for a general election, despite the prospect of the Fixed Term Parliament Bill becoming law in the near future. The Bill would fix the date of the next general election at 7 May 2015, as well as make it very difficult for a general election to be called prior to this designated date.
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4 April 2011 by Matthew Flinn
The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.
There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.
As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.
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4 April 2011 by Graeme Hall
In an interesting post, Aidan O’Neill QC concludes that the European Court of Human Rights is “in danger of imminent collapse” due to its backlog of 140,000 applications with around 1,600 arriving every month; a conclusion compounded by inherent delays. He suggests that the way to draw back Strasbourg from the brink of judicial Armageddon is to abolish the individual right to petition Strasbourg and to introduce a referral system whereby national courts request Strasbourg’s opinion on human rights issues, akin to the Court of Justice of the European Union (CJEU).
by Graeme Hall
I must disagree. Strasbourg’s jurisdiction spreads across 47 contracting States, ranging from diverse populations such as Liechtenstein and Malta to Russia and Turkey. In turn, the Court is the guardian of the European Convention on Human Rights for over 800,000,000 individuals. The 61,300 valid applications which Strasbourg received in 2010 represent applications from 0.0077 per cent of the population to which the Convention applies. Given the importance of the Convention to the protection of fundamental human rights and freedoms, I find it surprising that Strasbourg does not receive more applications.
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