One Justice to rule them all… the Human Rights Roundup

20 October 2011 by

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:

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

Upper Tribunal rules Independent (private) schools (1) have purposes in the public benefit for the purposes of charity law, (2) must help the poor but (3) How it does (2) is fact sensitive and a judgment for the trustees so Charity Commission guidance too prescriptive.

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

Supreme Court: Scottish Parliament Act providing certain asbestos-related conditions constitute personal injury ECHR A1P1 compatible and not unreasonable, irrational or arbitrary.

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

Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention.

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

Child Poverty Action Group fails in JR + equality challenge to new rules for calculating housing benefit: maximum weekly caps and reduction of maximum eligible size from 5 to 4 bedrooms.

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

Trafigura case costs: Court of Appeal rules that all costs on Leigh Day Solicitors’ bill must be “necessary”, not just “reasonable”. Success fee of 58% upheld.

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:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: