A Brit takes over at the European Court of Human Rights – The Human Rights Roundup
7 November 2011
by Melinda Padron
In the news
Family Justice Review
Last week the final report of the Family Justice Review (on Family Law) was published. The Family Lore blog has provided us with a summary of the key findings and a few comments on the review (so did Adam Wagner). See also the Pink Tape blog’s post on the topic.
Tackling the problem of delay seems to be the heart of the Family Justice Review’s proposals, evidenced by this piece, written by David Norgrove, who chaired the Family Justice Review, about the need to tackle the problem of delay in the family justice system when it comes to child protection cases. Norgrove says such delays are damaging to children and suggests, amongst other things, that children’s welfare should not be trumped by parents’ rights in these circumstances.
Immigration law matters
The Free Movement blog posted a short commentary on one specific aspect in the case of NA (Iran) v Secretary of State for the Home Department : Section 55 of the Borders Act 2009 and enforcement measures concerning children. The decision appears to indicate the need for a change of the policy regarding the procedure of “ensured return”.
Ensure returns are applicable either where there is no cooperation of the family concerned with return proceedings, or where the family is not following a pre-arranged departure process. The policy was described by Sir Stephen Sedley as being ‘a one-way street’ which does not accommodate for situations where a real risk of a violation of a Convention right might arise after the process for removal is initiated.
The JCWI blog has helpfully posted a video of Richard Drabble QC, counsel for the JCWI and Amber and Diego Aguilar-Quila in the recent visa age case, where he discusses the case and its possible repercussions.
The ECtHR and human rights
The new President of the European Court of Human Rights, Sir Nicolas Bratza, who was elected in July 2011, took up his duties last Friday 4 November. He is the third British President in the history of the Court. And there is now a vacancy for the job of UK judge at the ECtHR. The Ministry of Justice is inviting applications for the post. Find more details here.
The Sunday Telegraph has reported that Ministers are drawing up plans to rein in “outrageous” human rights rulings by judges. According to the article:
The move is designed to force judges to take notice of Parliament’s views amid growing frustration that the courts are too generous in Human Rights Act cases, particularly those where criminals use the law to avoid being deported from Britain.
The article further states that the plans include MPs being asked to vote on an amendment to existing legislation, or alternatively the Home Secretary or Justice Secretary making a strongly-worded ministerial statement in the House of Commons, with MPs having the opportunity to add their voices to the debate which would follow the statement.
If a UK Bill of Rights is to become a reality, Declan O’Dempsey, for Halsbury’s Law Exchange, suggests that dignity, equality and (in some of its meanings) transparency are fundamental values of any society worth living in, and should accordingly be included in the instrument.
Julian Assange’s extradition case
Last week the founder of Wikileaks, Julian Assange, lost his extradition case before the High Court (see Adam Wagner’s post on the case here). Whilst the outcome of his case was hardly a surprise, paragraph 17 of the judgment may have created a new ground for challenge of an European Arrest Warrant. According to Joshua Rozenberg, who refers to the judgment:
… paragraph 17 of the judgment … offers a new exception to the general principle of mutual recognition underpinning the European arrest warrant – that each European country respects the decisions of each other’s courts without asking too many questions. … [P]ublic confidence in the European arrest warrant would not be advanced unless the courts of the country that’s being asked to hand over an accused person “scrutinise requests for surrender under the European arrest warrant with the intensity required by the circumstances of each case”. Failure to do so could risk undermining public confidence in the EU’s “common area for justice,” the judges stressed.
Paul Bernal, writing for the Media@UAE Blog, highlighted the need for keeping the issues surrounding Assange separate: one thing is the issue of freedom of information and the fight against government and corporate secrecy and power; the other is Assange’s facing of his charges.
The Occupy Movement protests
After legal action against the Occupy Movement protesters was suspended, Alex Aldridge, writing for the Guardian, considers whether the potential upcoming legal dispute will be akin to a David v Goliath battle. Whilst on the subject of protests, the Guardian reports the astonishing news that there are now 12 inquiries on undercover policing of protest groups as a result of revelations by police undercover agent, Mark Kennedy.
In other news…
The Small Places blog wrote a piece about a case which ruling is eagerly awaited by those who work or have an interest in community care law: Cheshire West and Chester Council v P. The decision may finally define the meaning of deprivation of liberty in cases involving the placement of individuals in care. In light of the case of Limbuela (see Rosalind English’s summary of this case here), the post also reassesses the question of whether local authorities might be under positive obligations to provide additional resources to support people in their own home, to obviate the need for detention.
In light of the fact that the legal aid bill is currently before Parliament, the Law and Lawyers blog argued that “Rights” without access to justice are not rights at all, warning us that the legal aid cuts will effectively remove access to justice from the vast majority of people. The post contains links to other excellent articles which make the same argument.
And finally, do check out last week’s Latest human rights developments in the UK (24-30 October) by the Law Think blog.
In the courts:
S. H. and Others v. Austria (application no. 57813/00) November 3, 2011
- Prince Charles, oysters and environmental information November 6, 2011 David Hart QC
- Snooping councils, phone hacking, CCTV… time to reform surveillance laws? November 4, 2011 Adam Wagner
- Reclaiming the fruits of crime will not be made harder, rules Supreme Court November 4, 2011 Daniel Sokol
- Major family justice review published November 3, 2011 Adam Wagner
- Julian Assange loses High Court appeal against extradition November 2, 2011 Adam Wagner
- Taking a hatchet to the hackers – which way press freedom? November 1, 2011 Rosalind English
- Aarhus shows its teeth to Belgium October 31, 2011 David Hart QC
- The Supreme Court’s terrible twos?.. The Human Rights Roundup October 30, 2011 Graeme Hall