School’s out – The Human Rights Roundup

1 August 2011 by Graeme Hall

The higher courts may have shut for the summer and judges escaped to tropical retreats, but the UK Human Rights Blog rumbles on. Welcome back to 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. You can also find our table of human rights cases here.

by Graeme Hall

In the news:

Legal Aid

The Pink Tape blog picks up on another “teensy glitch” with the Legal Aid, Sentencing and Punishment of Offenders Bill, noting that applicants for non-molestation orders will be disinclined to accept an undertaking from a respondent (“a solemn promise to the court not to behave in a particular way, which is punishable by imprisonment and can stand in the stead of an non-molestation order”), as in doing so, s/he will be disqualified from legal aid entitlement.

However, it is not just the government’s act which presents problems. Writing in the Guardian, Richard Moorhead concludes that “legal aid cuts do not lose votes” and that, in turn, the legal profession’s objections to the cuts need to start to chime with voters. Presently, as intimated from the somewhat provocative title, “Lawyers are their own worst advocates”.

Incapacity and disability

Two interesting posts from The Small Places blog this week regarding the Court of Protection. The first, Authoring our ends, looks at the application by a family to withdraw life-sustaining treatment from ‘M’, currently in a minimally conscious state. This piece takes an expansive look at end-of-life decision-making and is vital reading for anyone interested in the interaction of ethics and law. With the recently announced publication of a Guide to Media Access and Reporting in the family courts, the second post, Access, reporting and judgments in the Court of Protection, highlights that despite over 1200 welfare-related applications to the CoP alone, only 18 judgments are available on Bailii, begging the question: why is such a low proportion being published?

Eilionoir Flynn, writing on the Human Rights in Ireland blog, remarks on two cases currently before the European Court of Human Rights. The first, Gauer v France, concerns the enforced sterilisation of women with mental disabilities. The second, RP and Others v UK, concerns the removal of a child from its mother, with particular emphasis on the role of the Official Solicitor. In both cases capacity, consent and access to courts will be key issues, along with the potential for the European Court to consider the UN Convention on the Rights of Persons with Disabilities.

Whilst on the topic of the European Court, cearta.ie blog reports on the publication of an interesting article regarding one of the court’s more fluid legal tools: the margin of appreciation. Click here for further details.

Immigration

The Law Society Gazette has welcomed the government’s decision to provide legal aid for immigrants suffering domestic violence. The need for such funding is no better highlighted than by the United Kingdom Immigration Law blog’s exposition of APP’s case; an immigrant subjected to domestic violence, let down by the immigration political and legal systems.

However, as Halsbury’s Law Exchange blog’s Simon Hetherington has posted this week, an inspection report by the Chief Inspector of Prisons into Tinsley House Immigration Removal Centre shows that improvements are being made into the conditions of detained immigrants. Hetherington focuses on the report’s recommendation to stop the “inhumane” “distressing” and “objectionable” practice whereby reserve deportees are taken to the airport in case individuals scheduled to be deported are unexpectedly able to remain.

Other legal news roundups:

For anyone with the Monday blues, Charon QC offers an amusing “non structured and, possibly random, review of the law”: Postcard from The Staterooms: Lawyers giving us a ‘good name’? – and a UK Education onslaught by News Corporation?. For those whose time is limited, try Pink Tape’s Bog Post and, as always, Obiter J’s roundup of some recent legal items offers a detailed and succinct account of this week’s legal wranglings.

In the courts:

Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 (26 July 2011): UK Border Agency still liable to costs even if claimant gets what they want (e.g. leave to remain) before trial – this is an important decision in respect of liability for costs in settled judicial review claims: see Free Movement Blog and Nearly Legal

Cockburn, R (on the application of) v Secretary of State for Health [2011] EWHC 2095 (Admin) (29 July 2011): High Court rules NHS pension scheme for widowers human rights compliant, despite widowers getting less than widows. Wide discretion as socio-economic policy.

Secretary of State for the Home Department v CD [2011] EWHC 2087 (Admin) (29 July 2011): Control order ruled lawful: “reasonable grounds for suspecting CD is a leading figure in network of Islamist extremists” – see guardian.co.uk

SCHALK AND KOPF v. AUSTRIA – 30141/04 [2010] ECHR 1996 (22 November 2010): 2010 decision of Euro court that states not obligated to allow for gay marriage becomes final.

X, Y & Z v the United Kingdom – 32666/10 [2011] ECHR 1199 (5 July 2011): Euro HR Court claim re local authority’s duty to protect residents with learning disabilities from harassment settled – see Nearly Legal’s post.

Condliff, R (on the application of) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 (27 July 2011): CoA: Refusal of NHS gastric bypass surgery to obese man not breach of article 8 right to private/family life. Proportionate for PCT to adopt “exceptional circumstances” test without reference to personal characteristics – see Adam Wagner’s post

Thomas & Ors v Bridgend County Borough Council [2011] EWCA Civ 862 (26 July 2011): Decision to build new road close to claimants’ homes and subsequent depreciation in value breached their human rights to peaceful enjoyment of property – see David Hart QC’s post.

Smith & Ors, R. v (Rev 1) [2011] EWCA Crim 1772 (19 July 2011): Court of Appeal: Blanket internet bans for Sexual Offences Prevention Orders always disproportionate; court gives general guidance.

Huitson, R (on the application of) v Revenue and Customs [2011] EWCA Civ 893 (25 July 2011): Revenue’s retrospective enforcement of rules preventing Isle of Man tax avoidance scheme not breach of human rights to property.

Case-law commentaries from across the blogosphere:

• Never Mind the Boxall, Nearly Legal. Commentary on R (Bahta & Ors) v SSHD regarding costs for settled judicial review claims.
• Important new case on costs when UKBA concedes late, Free Movement. Commentary on R (Bahta & Ors) v SSHD regarding costs for settled judicial review claims.
• X & Y v UK settled without hearing, Nearlylegal.
• TE v SSHD, Joint Council for the Welfare of Immigrants. Paragraph 395C of Immigrations Rules sets out factors to be taken into consideration when deciding to remove immigrants. It does not represent an exhaustive list to be ‘met’.
• Thornton v Telegraph Media Group, an offer of amends defence fails, Hugh Tomlinson QC, Inforrm’s Blog. Journalists liable for defamation if they make false defamatory allegations of fact.
• Thornton v Telegraph Media: What happens when adversarialism goes too far?, Richard Moorhead, Lawyer Watch.
• SSHD v Rahman, Joint Council for the Welfare of Immigrants. The Home Office’s withdrawal of a policy under which families without leave, but with children who had been here for 7 years, were allowed to remain, was lawful.

… and don’t forget to look at out recent posts:

• After Winterbourne View: the untapped potential of Article 8 – Lucy Series August 1, 2011 1 Crown Office Row
• Mobile masts and grid references get to Europe July 29, 2011 David Hart QC
• Family courts guide to Media Access & Reporting July 29, 2011 Adam Wagner
• Analysis – Daily Mirror and The Sun in contempt over Jo Yeates murder case July 29, 2011 Adam Wagner
• Nuclear test veterans appeal to be heard by Supreme Court July 29, 2011 1 Crown Office Row
• Police misconduct doesn’t always mean that accused walks free July 28, 2011 Rosalind English
• Public purse stays closed for morbidly obese man July 28, 2011 Adam Wagner
• Just when you thought they were extinct: human rights environmental case succeeds July 27, 2011 David Hart QC