European stem cells, Hackgate and injunctions – The Human Rights Roundup

24 October 2011 by

Welcome back to the human rights roundup. Our 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:

Privacy and the media

Last week Lord Judge LCJ gave a speech on “press regulation” at Justice’s Annual Human Rights Law Conference.

His speech was an unusual one, given that judges generally refrain from commenting on the important issues of the moment. Lord Judge was supportive of Lord Justice Leveson and of the Press Complaints Commission, both targets of criticism in the context of the inquiry into the culture, practices and ethics of the press and the Leveson inquiry.

Most importantly, Lord Judge LCJ sent what appeared to be a reassuring message to the press: that the judiciary is against governmental or judicial regulation of the press. The Inforrm’s blog posted this piece about the highlights of the speech.

Meanwhile, the Joint Committee on Privacy and Injunctions held its first evidence session last Monday – the transcript can be found here. The witnesses interviewed were Jack Straw MP, Lord Wakeham, Sir Stephen Sedley, and Professor Gavin Phillipson. The Inforrm’s blog posted a piece on the interesting points which emerged in the course of the session.

Today the Committee will have two sessions: in the first, at 2.40pm, the witnesses will be David Price QC, Gavin Millar QC, Keith Mathieson and Gillian Phillips; and in the second, at 3.40pm, Hugh Tomlinson QC, Gideon Benaim and Alasdair Pepper.


Also prominent last week was the related “hackgate” saga. According to a Guardian report, during a hearing of the Commons culture, media and sport select committee on Wednesday 19 October, Julian Pike, a partner at Farrer & Co, admitted that he knew his client, News International, was misleading Parliament. Pike, however, indicated that he could do nothing about it because of client confidentiality. Professor Richard Moorhead explores the ethical dimensions of such an admission in light of the solicitors’ new code of conduct.

Come fly with me

An independent review of the UK’s extradition laws was published last week. As Adam Wagner explained, extradition is the name given to the formal legal process by which persons accused or convicted of crime are surrendered from one state to another for trial or punishment. Extradition law constitutes a system of agreements between states which make it easier to extradite, for example, criminal suspects if a certain level of evidence is provided and procedures complied with.

The review was long-awaited, especially by those who have campaigned against some extradition arrangements (most notably the US/UK extradition agreement, a major aspect of alleged Pentegon hacker Gary McKinnon’s case). The review panel was composed of three independent lawyers: Rt Hon Sir Scott Baker, David Perry QC and Anand Doobay.

The review’s findings have mostly backed the status quo (a summary by Adam Wagner can be found here). Rebecca Shaeffer, however, has posted on behalf of Fair Trials International that the review could improve the European Arrest Warrant mechanism.

European stem cells

Last week the Grand Chamber of the Court of Justice of the European Union issued a judgment in the case of Oliver Brüstle v Greenpeace e.V (Case C‑34/10) in which it banned the issuing of patents for stem cells on ethical grounds. As stated by Aidan O’Neill QC, the CJEU was faced with the question of:

whether EU law permitted the patenting of a process allowing for the production, from stem cells extracted from human embryos, of an almost unlimited quantity of isolated and purified precursor cells having neural or glial properties […which] had a direct clinical application for individuals suffering from a variety of neurological diseases, such as Parkinson’s disease.

The relevant EU law instrument is Directive 98/44/EC on the legal protection of biotechnological inventions. The case raised very interesting legal and ethical issues, in particular how the right to human dignity related to the dispute. Although a fundamental right under German constitutional law and jurisprudence, the right to human dignity has been recognised as an unwritten principle of EU law, and undoubtedly played a significant part in the outcome of this case.

See Aidan O’Neill QC’s commentary on the EUtopia Law blog for a more detailed assessment of the case.

Secrecy in the courts

In a new green paper, the Government has argued for more closed (secret) hearings in civil courts in order to protect sensitive security information – see Adam Wagner’s post here.. Eric Metcalfe comments in the Guardian:

instead of the courts having to exclude potentially relevant material that is too sensitive to be made public or even disclosed to the other party, it would be better for all concerned if the government were allowed to produce its evidence in secret before the judge. The other party would not be allowed to hear the evidence against them.

Metcalfe, a former director of JUSTICE, argues that the proposal would have a detrimental impact to the centuries-old common law principle of public interest immunity. The principle, designed to balance the interests of fairness and national security, establishes that a court may allow a party to proceedings to refrain from disclosing evidence to the other parties where disclosure would be damaging to the public interest.

The green paper proposal, argues Metcalfe, is designed to improve the government’s chance of winning its cases involving national security issues and avoiding the payment of large sums to settle damages claims arising from the same cases.

Finally, for a further look into last week’s main legal news, why not check out Charon QC three-part news roundup herehere and here, or David Allen Green’s roundup at The Lawyer?

In the courts:

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

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 – our post here

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 – our post here

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 – our post here

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 – see Inforrm’s blog (not a comment on this ruling but on a related aspect of the Trafigura case)

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.
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