Do ask, do tell – The Human Rights Roundup

26 September 2011 by

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 can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

Reiterating the last roundup’s call, if you know an individual, campaign group or NGO which deserves to have its local or national human rights work recognised, nominations for The Liberty Human Rights Award close on 30th September 2011, so there’s still time to get nominating!

In the news

Dale farm evictions

Last week residents at the UK’s largest illegal travellers’ site, at Dale Farm in Essex, won a court injunction delaying their planned eviction. A High Court decision on an injunction halting the eviction of residents from the UK’s largest illegal travellers’ site will take place today.

Daniel Keane, writing for the Human Rights in Ireland blog, gives us a short overview of the ECtHR’s jurisprudence on travellers and Roma gypsies. Keane then assesses whether the prospect of eviction of those in Dale Farm may constitute a breach of Convention rights. He believes the ECtHR has thus far allowed the UK government a wide margin of discretion to set planning permission rules and is perhaps missing a crucial point: arguably strong evidence of institutional racism in the granting of planning permission to travellers.

Gagging the press

It has been reported that the Metropolitan police has dropped its attempt to order the Guardian newspaper to reveal confidential sources for stories relating to the phone-hacking scandal. The decision came after an intervention by the Crown Prosecution Service and widespread outrage.

As previously covered by Adam Wagner and Obiter J, the Metropolitan police were hoping to rely on the Official Secrets Act 1989 when applying for the order. Alex Bailin, writing for the Guardian, gave us an overview of key cases involving the OSA 1989. He then argued the Act was outmoded, a relic of the cold war and in need of complete overhauling. Perhaps most importantly, that it is time it should include a statutory public interest defence.

This story reinforces the importance of the task being carried out by Lord Justice Leveson in the phone-hacking inquiry. The inquiry will focus primarily on the relationship between the press and the public and the related issue of press regulation. Joshua Rozenberg reported that the first few steps to be taken by the phone-hacking inquiry will be the conducting of three teaching sessions on the law, possible regulatory models and the mechanics of phone-hacking.

Deportation of convicted criminals and the ECtHR

Last week the ECtHR issued its judgment in the case of A.A. v UK (see below), finding that the decision to deport a convicted rapist breached his article 8 right to family life (for details, see Rosalind English’s commentary to the case).

The decision attracted some critical coverage, and further fomented the debate on the reform of the Court, particularly regarding its efficiency in dealing with its huge backlog. In light of this judgment, Simon Hetherington writing for Halsbury’s Law Exchange remarked that if the ECtHR’s legal process were more efficient, the applicant in A.A. would perhaps not have had a strong case. This is because the scope of the rights contained within article 8 have expanded considerably since the beginning of his legal battle in 2003.

Writing on the subject of deportation of convicted criminals in general, Tom Hennessey points out the odd fact that UK government is prepared to spend generous amounts of tax payers’ money on punishing and, theoretically, rehabilitating foreign prisoners only to then send them to continue their lives elsewhere.

The EU and fundamental rights

In a series of posts (part I and part II) Aidan O’Neill QC, writing for the EUtopia Law blog, questions what effect will the UK’s “opt-out” from the EU Charter of Fundamental Rights (technically known as Protocol 30 to the Lisbon Treaty) have on the interpretation and application of the Charter’s provisions. He concludes that the limiting effects Protocol 30 will have will be minimal (if any at all), but reminds his readers that we may be getting a definitive answer on the matter once the case of NS v Secretary of State for the Home Department (C-411/10) is decided by the CJEU.

In another series of posts, O’Neill looks into the subject of EU’s accession to the Council of Europe. The first post sets out some of the obstacles to be overcome if this goal is to be realised. In the second post (still to be published), O’Neill will discuss the treaty basis for accession and the treaty amendments required for the EU to accede to the ECHR.

Ask, tell!

A policy banning open homosexuality in the US military has been repealed after nearly two decades. According to the SCOTUS blog (the US Supreme Court blog) service members who were discharged under the policy will now be allowed to seek re-enlistment and an ongoing case contesting the constitutionality of the ban may now be declared moot. See our previous coverage of the repeal.

The story of how gay soldiers were allowed into the British army just over 10 years ago, follow a European Court of Human Rights ruling, is also interesting – see Adam Wagner’s post: US ten years behind Britain on gay soldiers.

In other news

Last week Owen Bowcott, writing for the Guardian, helpfully provided us with bite-sized and simple answers to questions on whether legal aid changes will limit access to justice

. You can also listen to discussions regarding legal aid in legal blogger Charon QC’s lawcast 197, which featured John Cooper QC as a guest commentator.

Gavin Phillipson, for the UK Constitutional Law Group blog, assesses the relationship between the Human Rights Act and constitutional principles in a new way: whilst many of the discussions about this relationship have been about how far the HRA has transformed the existing constitution, Phillipson looks at how far the HRA itself must be read in the light of pre-existing constitutional principles.

Lucy Series, for the Small Places blog, discusses what the meaning of deprivation of liberty is and what we need deprivation of liberty safeguards for.

Finally, do not miss the chance to read Law and Lawyer’s news roundup.

In the courts

A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 (20 September 2011)

European Court of Human Rights: Decision to deport convicted rapist breached article 8 rights to family life. Was convicted of single offence at age 15 in 2002.

Castle & others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin)

High Court: three claimants (aged 16, 16 and 14), who were “kettled” by the police for several hours during the protests against the rise in university tuition fees sought to challenge their containment by way of judicial review alleging, amongst other things, breach of s.11 of the 2004 Act. The Court concluded that, while s.11 requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children, that duty had been discharged. See detailed commentary to this case in 11KBW’s Education Law blog.

Russell KNAGGS and Ramzy KHACHIK v the United Kingdom – 46559/06 [2011] ECHR 1328 (30 August 2011)

European Court of Human Rights: refusal to admit intercept evidence in court proceedings not breach of human rights. Claimants failed to exhaust domestic remedies.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam) (01 September 2011)

President of Family Division suspends Elizabeth Watson (“investigator” in Vicky Haigh / John Hemming) contempt prison sentence for 2 years. See Adam Wagner’s commentary to this case here.

OAO NEFTYANAYA KOMPANIYA YUKOS v. RUSSIA – 14902/04 [2011] ECHR 1342 (20 September 2011)

Tax enforcement proceedings by Russia against defunct Yukos oil company breached company’s human rights. Court defers by 3 month ruling on 81 billion Euros damages claim.

NJ, Re Judicial Review [2011] NICA 50 (14 September 2011)

Northern Ireland High Court: Indefinite retention of data on sex offenders register may breach art.8 right to privacy/family life.

and don’t forget our recent posts…

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