A Brit takes over at the European Court of Human Rights – The Human Rights Roundup

7 November 2011 by

Sir Nicolas Bratza

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

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:

Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) November 6, 2011

Prince Charles’ Duchy of Cornwall is a public authority within the meaning of the Environmental Information Regulations 2004, therefore subject to requests for environmental information. See David Hart QC’s commentary to the judgment here.

Howarth v Commissioner of Police of the Metropolis [2011] EWHC 2818 (QB) (03 November 2011) November 4, 2011

Train search of environmental protester not breach of free expression / assembly rights. High Court: we mustn’t be “over precious” as to police powers, particularly on transport. Case brought by Liberty.

S. H. and Others v. Austria (application no. 57813/00) November 3, 2011

European Court of Human Rights: Austrian ban of doner eggs and sperm for in vitro fertilisation. Emerging European consensus on in vitro fertility treatment “not based on settled principles”, so ban within Austria’s margin of appreciation.

MD (Angola) & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2011] EWCA Civ 1238 (01 November 2011) November 2, 2011

High Court: UK system dealing with HIV+ detainees is human rights compliant, 3 detainee’s treatment lawful despite errors.

Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011) October 26, 2011

Supreme Court: Criminal standard of proof not required by fair trial rights for confiscation under Proceeds of Crime Act.
Alam (s 85A – commencement – Article 8) Bangladesh [2011] UKUT 424 (IAC) (13 October 2011) October 26, 2011
(1) s. 85A of Nationality, Immigration and Asylum Act 2002 precludes certain evidence from being relied on, in order to show compliance with the Immigration Rules. (2) “Fairness” arguments may have a legitimate part to play in a proportionality assessment under Article 8 of the ECHR.
…and don’t forget to check our recent posts:


  1. g says:

    human rights are important , your going like china

  2. Will British Eurosceptics charge him with treason?

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