One Justice to rule them all… the Human Rights Roundup

20 October 2011 by Melina Padron

Welcome back to the human rights roundup, a regular bulletin of everything we have not 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

In the news

The UK Supreme Court under the spotlight

Last week the UKSC’s constitutional status, message, work and composition were the focus of various articles.

Roger Masterman and Jo Murkens tried to establish what kind of court is the UK Supreme Court, with particular reference to its constitutional status. Amongst many interesting points, Masterman and Murkens believe that as a result of some of its own features, the Court has begun cementing its place as a constitutional actor of its own right.

Richard Cornes, for the Guardian, believes that the most interesting message the Supreme Court is sending has gone almost unheard. Cornes argues this is the result of a combination of the obstacles to the efforts to make the Court more transparent, and the quality of coverage of the Court’s work. In particular, Cornes believes readers of mainstream media (he cites the Daily Mail, the Times and the Guardian as examples) will not have the same impression of the Supreme Court as the person who follows the UK Human Rights blog’s Twitter feed or checks the Guardian Law or Times Law pages online.

Two decisions of our Supreme Court also feature in many news articles and commentaries: AXA and Quila.

In AXA, insurance companies challenged the lawfulness of the Damages Act 2009, passed by the Scottish Parliament. The Act prescribes the right of people in Scotland to claim damages for an asbestos-related condition. The Supreme Court decided to uphold the lawfulness of the Act (see the UKSC Blog’s summary of the decision). There were many interesting issues arising from this case, in particular the Court’s comments on the sovereignty of the Scottish government (paras. 47-51), and the insurance companies’ argument that the Damages Act 2009 breached the ECHR (Art 1 of Protocol I to the Convention). This latter issue was picked up by David Hart QC, who wrote a post in our blog entitled “Insurers’ human rights not to pay for putting asbestos in employee’s lungs?”.

In Quila, as Rosalind English put it, the Supreme Court had to decide whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship (UKSC press summary and UKSC Blog summary). The Court decided that it was not. Para. 277’s interference with the respondents’ article 8 rights (right to respect one’s private and family life) was not justified. The rule would keep a very substantial number of bona fide young couples apart or forced to live outside the UK, vastly exceeding the number of forced marriages that would be deterred. Quila generated a number of commentaries, including:

• Supreme Court judgment and Visa Age – Another Victory – by the organisation which represented the young couple, Joint Council for the Welfare of Immigrants
• Home secretary loses marriage visa case – United Kingdom Immigration Law Blog
• Of Foreigners and Families – Bagehot (The Economist – actually a pre-decision commentary, but very interesting nonetheless)
• Supreme Court overturns non-EU young spouses ban – BBC News

Finally, the president of the Supreme Court, Lord Phillips (pictured), announced he will be retiring next summer (and also made statements in defence of human rights). The process to appoint a successor as President of the Supreme Court will begin in the new year – you can read a report of Lord Phillips’ evidence to a Lord Committee on Judicial Selection here.

Joshua Rozenberg already believes there is a favourite: Lord Neuberger (also pictured). Lord Neuberger, whose thoughts on open justice have been praised on this blog in the past, has recently given a speech at this year’s High Sheriff’s Lecture in Leeds, entitled “Justice in a time of economic crisis and in the age of the internet”. Drawing inspiration from a passage in US constitutional scholar Philip Bobbitt’s study “The Shield of Achilles” (see para. 3 of the speech), Lord Neuberger introduced his speech by saying that:

The growth of technology, and especially of the internet, regulatory reform, recent and possibly further constitutional reform, the present economic situation and, if Bobbitt is right, the transformation of the nation-state into the market state, all suggest that we are living in one of those rare periods where the many aspects of our future, and in particular our legal future, are likely to be rather different from those of the past.

Bills of Rights Commission

The Bill of Rights Commission has opened a public consultation – the deadline for responses is 11 November 2011; all details here and Adam Wagner’s post on it is here.

Colin Murray wrote for the Human Rights in Ireland Blog about the resurfacing of a potential Bill of Rights for Northern Ireland. Murray says that the failure to develop a Northern Ireland Bill of Rights in the 13 years since the Good Friday Agreement vests the HRA with a significance in the Northern-Ireland context which undermines the Conservative Party’s stance on the future of the Act.

Meanwhile, Tom Hickman wrote for the UK Constitutional Law Group about a question which seems to be missing from the UK Bill of Rights Commission’s consultation: in addition to the questions of whether we need a Bill of Rights and, if so, what it should contain, Hickman argues the Commission should be asking HOW a Bill of Rights should be introduced?

Independent schools and “the public benefit”

The Upper Tribunal decided last week that charitable independent schools must run their charity to ensure that the poor can benefit in a way which is more than minimal or tokenistic, if they are to enjoy the benefits of charitable status. However, once that threshold is reached, what the trustees do in the running of the school is a matter for them. It is not for the Charity Commission or the courts to impose on trustees of a school their own idea of what is for the “public benefit” so as to qualify for charitable status. For further detail, read Rosalind English’s and 11KBW’s Education Law Blog commentaries.

The impact of housing benefit changes

Nearly Legal follows on from a previous post on the changes to be made to housing benefits to discuss the decision in the case of R(CPAG) v Secretary of State for Work and Pensions [2011] EWHC 2616 (Admin), an unsuccessful challenge to some of the changes to housing benefit introduced by the coalition government. The article goes beyond the legal merits of the changes and looks at the potential impact of the measures. It predicts, amongst other things, that

some rents will become unaffordable, certain areas will be “cleansed” of housing benefit applicants, landlords may become (even more) wary of letting to housing benefit applicants, there may be a knock-on effect on homelessness applications.

In other news

Joshua Rozenberg, for the Guardian, writes about a High Court case which highlights the importance of deciding on parental roles before embarking on artificial insemination. The case involved a dispute between the two mothers and the two fathers over parenting arrangements of a 10-year old girl and her sister. The facts of this case also emphasise the need to “thinking outside the conventional box” in terms of the parenting terminology we normally use – the decision can be downloaded here.

During the Conservative Party Conference, David Cameron announced he supported gay marriage and that he was consulting on the issue. That statement led both Adam Wagner and James Wilson (for HLE) to write on the subject. Whilst Wagner was of the opinion that it is for Parliament to balance all the different values surrounding gay marriage, Wilson suggests the separation of church and state completely with regard to marriage (akin to the French system) as a solution.

The UK government has announced that it will not be opting in to two EU Asylum Directives. The Immigration Minister Damian Green argued that the directives would have restricted the UK’s ability to run an asylum system which is both fair and efficient. He also stated that the government does not support a common asylum system in Europe and that opting in “would have sent out the wrong message, encouraging those who do not need our protection to make unfounded asylum claims”.

Residents of Dale Farm have been refused permission to appeal against a High Court ruling giving Basildon Council the go-ahead to evict them. Evictions started today.

Finally, Judith Townend makes the case in an article for the Guardian that “Reams of legal information are still squirreled behind paywalls.” Townend believes that even with an internet connection, a wealth of legal information lies outside the average citizen’s reach, with access to full range of materials requiring “deep pockets”.

In the courts:

The Independent Schools Council v The Charity Commission [2011] UKUT 421 (TCC) (13 October 2011)October 15, 2011

AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 (12 October 2011) October 13, 2011

Quila & Anor, R (on the application of) v Secretary of State for the Home Department [2011] UKSC 45 (12 October 2011) October 13, 2011

Child Poverty Action Group v Secretary of State for Work & Pensions [2011] EWHC 2616 (Admin) (13 October 2011) October 13, 2011

Motto & Ors v Trafigura Ltd & Anor [2011] EWCA Civ 1150 (12 October 2011) October 12, 2011

Sino, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) (25 August 2011) October 11, 2011

5 years detention of Algerian found to be unlawful by High Court: failure to co-operate with removal does not of itself justify immigration detention.

…and don’t forget our recent posts:

• More secret justice on the horizon October 19, 2011 Adam Wagner
• Extradition review backs status quo, leaves some completely baffled October 19, 2011 Adam Wagner
• Court of Appeal upholds 7 of 10 riot sentencing appeals, including Facebook cases – Obiter J October 18, 2011 1 Crown Office Row
• Independent schools can decide charitable status, says Tribunal October 18, 2011 Rosalind English
• Air quality: whose job is it anyway to decide? October 17, 2011 David Hart QC
• 2-day seminar on economic and social rights in the age of austerity October 14, 2011 Adam Wagner
• Another cuts challenge fails: Changes to housing benefit scheme is lawful October 14, 2011 Richard Mumford
• Insurers’ human right not to pay for putting asbestos in employees’ lungs? October 13, 2011 David Hart QC
• Why have a European Court of Human Rights? – Dr Ed Bates October 13, 2011 1 Crown Office Row