Monthly News Archives: February 2012


Prayer in council meetings was unlawful, rules High Court

10 February 2012 by

R on the application of the National Secular Society and Clive Bone v Bideford Town Council – read judgment

The High Court today ruled that the Town Council of Bideford (in Devon) had overreached their powers under the Local Government Act 1972 by insisting on the practice of prayers as part of their formal meetings. The ruling will apply to the formal meetings of all councils in England and Wales, the majority of which are thought to conduct prayers as part of their meetings.

Background

The Secular Society brought this application as part of their campaign to separate religion from public and civil life. They have observed that prayers have been the cause of tension in a number of local councils. But the Society needed  to join an individual claimant since they could not be a “victim” for the purposes of the Human Rights Act.

The claimants contended that the practice, which dates back the days of Elizabeth the First, breached the prohibition on religious discrimination in the Equality Act 2006, and the replacement “public sector equality duty” in the Equality Act 2010: it discriminated indirectly against persons, such as Mr Bone, who had no religious beliefs, and it was not justifiable under those Acts. The practice interfered with Mr Bone’s right not to hold religious beliefs under Article 9 ECHR, and not to be discriminated against for that lack of belief under Article 14. They also contended that it was outside the powers of section 111 of the Local Government Act 1972.
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Scottish bail conditions breach human rights to liberty, rules Scottish court

10 February 2012 by

Brought to you by Andrew Tickell

Cameron v. Procurator Fiscal [2012] ScotHC HCJAC_19 – Read judgment

Amongst Scots lawyers, few judicial observations are more notorious than those uttered by Lord Cranworth in the House of Lords in Bartonshill Coal Co v Reid in 1858.  “If such be the law of England,” he said, “on what ground can it be argued not to be the law of Scotland?” Today, in a United Kingdom further complicated by the asymmetric devolution of the 1990s, it isn’t unusual to encounter a Cranworthy combination of perplexity and indifference amongst English lawyers when it comes to the structure and implications of devolution elsewhere in these islands.

On one level, this is perfectly understandable.  Devolution is a matter for the Welsh, Northern Irish and Scots, the proposition runs. Let them get on with it. For those of us interested in the developing constitution, human rights and judicial review, weary of re-reading hand-me-down copies of Dicey, this inattention is to be regretted. The emerging body of litigation around devolution, and the powers of devolved institutions, is producing some of the most interesting “constitutional” cases in Britain today.

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Abu Qatada relased on “very restrictive” bail conditions

9 February 2012 by

Othman v Secretary of State for the Home Department , 6 February 2012 – read judgment

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in this bail hearing.  He is not the author of this post.

Mitting J has ruled that in the light of the recent Strasbourg ruling that the appellant could not be returned to Jordan,  his detention could not continue. Under the so-called “Hardial Singh” principles, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose, and the deportee may only be detained for a period that is reasonable in all the circumstances:

 If before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.
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Please stow your rights in the overhead compartment

9 February 2012 by

Stott v Thomas Cook Operators and British Airways Plc [2012] EWCA Civ 66 – read judgment

If you need reminding of what it feels like when the candy-floss of human rights is abruptly snatched away, take a flight.  Full body scanners and other security checks are nothing to the array of potential outrages awaiting passengers boarding an aircraft. Air passengers in general surrender their rights at the point of ticket purchase.

The Warsaw Convention casts its long shadow. It was signed between two world wars, at the dawn of commercial aviation, when international agreement had to be secured at all costs. These strong interests survived the negotiation of the 1999 Montreal Convention, now part of EU law as the Montreal Regulation.

Yet so powerful is the desire to travel, and so beleaguered it is now with the threat of spiralling aviation fuel prices and environmental taxes, that we are happier to surrender our freedoms at airports than we are anywhere else – hospitals, doctors’ surgeries, schools, and even on the public highways.

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Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court

8 February 2012 by

This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.

Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2 – Read judgment / press summary

The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under article 2 of the European Court of Human Rights (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.

My initial thoughts are that this is potentially very important, and follows on from Savage in gradually expanding the reach of Article 2, and therefore the liability of mental health hospitals to patients and (as was crucial in this case) their families. The court observed that Ms. Rabone, who committed suicide after being granted 2-days of home leave by the hospital, could have been detained under the MHA in any event, so the distinction between a voluntary and detained patient was of form rather than substance.

Nonetheless, the decision appears to endorse an “each case on its own facts” approach, and will affect human rights damages claims and arguably so-called article 2 inquests too. Here is a particularly quotable line from Lady Hale at paragraph [92]:

“There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage…”

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Libya employee can sue for dismissal in UK

8 February 2012 by

Ravat (Respondent) v Halliburton Manufacturing and Services Limited (Appellant) (Scotland) [2012] UKSC 1 – read judgment

The Supreme Court has ruled that an industrial tribunal does have the jurisdiction to consider a case of unfair dismissal of an employee who worked some of the time in Libya, job-sharing with another of the company’s employees. The company itself is a UK subsidiary of a US corporation.

The following is based on the Supreme Court’s press release. Numbers in square brackets refer to the paragraphs in the judgment.

Background to the case

The issue was whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas. The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation. It supplies tools, services and personnel to the oil industry. Mr Ravat lives in Preston, Lancashire, and is a British citizen. He was employed by the Appellant from April 1990 until May 2006, when he was made redundant. He complains that he was unfairly dismissed. At the time of his dismissal he was working in Libya. The question is whether the employment tribunal has jurisdiction to consider his complaint.
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Times contempt challenge thrown out in Strasbourg

8 February 2012 by

Michael Alexander SECKERSON and TIMES NEWSPAPERS LIMITED against the UK Applications nos. 32844/10 and 33510/10 – Read decision / press release

The European Court of Human Rights has rejected as “inadmissible” Times Newspaper’s challenge to its 2009 conviction for contempt of court. The decision, which was made by seven judges, is a good example of an early stage “strike-out” by the Court which is nonetheless a substantial, reasoned decision (see our posts on the “UK loses 3 out of 4 cases at the court” controversy).

It has been a bad 24 hours for The Times, with its editor being recalled to the Leveson Inquiry into press ethics yesterday to answer questions about the hacking of a police blogger’s email account to reveal his secret identity, and subsequent disclosure (and lack thereof) to the High Court. Ultimately, James Harding appeared to blame the Times’ now-departed in-house lawyer as well as “legal privilege” – see Professor Richard Moorhead’s excellent post on the ethical issues surrounding this.

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Indefinite detention: not very British

8 February 2012 by

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog.  Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.

The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.

by Colin Yeo

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UK Supreme Court is tweeting, but where are the other courts?

7 February 2012 by

The UK Supreme Court began tweeting yesterday as @UKSupremeCourt to deserved international fanfare. Some even speculated that Wikileaks founder Julian Assange’s extradition fate could now be revealed on Twitter.

The court is already being followed by almost 4,000 Twitter users (for the uninitiated, that is a lot) and has already beaten its own Twitter policy’s prediction of “2-3 tweets a week” with eight on its first day. The eventful debut tweets included seven live updates on the swearing-in ceremony of the court’s newest Justice, Lord Reed, and one relenting to Twitter user @FOImanUK‘s valid point that contrary to the court’s stated policy, it should be possible to put freedom of information requests to the court via Twitter.

This is all excellent news. The UK’s newest and highest appeal court is now setting the international standard for open justice, with its splendid press summaries of judgments, live transmission of hearings online (today’s is a very interesting case about the state’s financial responsibility towards disable people), accessible court facilities and generally public-facing approach. This is also as it should be: the Court has a statutory duty to be “accessible”. But the Supreme Court, which is largely independent from the rest of the court system, is now streaking ahead of it in terms of access to justice. And this open justice gap is becoming a problem.

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Axel Springer and Von Hannover: Grand Chamber victory for media – Inforrm

7 February 2012 by

The media were successful in both the judgments handed down this morning by the Grand Chamber of the European Court of Human Rights.  The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest.  In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy. 

The judgments demonstrate the need for a careful balancing exercise in privacy cases.   Both cases involved “popular journalism” and show that,  even in this area, privacy is not a “trump card”.  The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.

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What you can do with rights – Justice Edwin Cameron

7 February 2012 by

On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.

Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.

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Let the deportation fit the crime

6 February 2012 by

Gurung v Secretary of State for the Home Department [2012] EWCA Civ 62 (02 February 2012) – read judgment

In a short but fascinating judgment which lays bare the foundation stones of judicial review, the Court of Appeal has articulated the principles to be applied when considering whether automatic deportation of a foreign criminal was “proportionate” for the purposes of Article 8 of the Convention.

This was an appeal by the secretary of state against a decision of the Upper Tribunal (UT) that the deportation of the respondent (G) would interfere with his family life. The respondent had arrived in the United Kingdom in 2005 to join his father who had been granted indefinite leave to remain in the United Kingdom at the end of his service with the Gurkhas. Shortly afterwards G was involved in a group attack on a man, which led to the unconscious victim being thrown into the Thames and drowned. G was subsequently tried and convicted of manslaughter, which meant that he was subject to automatic deportation under the UK Borders Act 2007.  However, the Upper Tribunal found that automatic deportation would be a disproportionate interference with his right to family life in the UK.
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No Article 10 breach by anti-corruption NGO

3 February 2012 by

Růžový Panter, OS v. Czech Republic (App No 20240/08) – read judgment (only available in French)

The European Court of Human Rights (Fifth Section) decided yesterday that there was no violation of Article 10 as a result of a defamation judgment against a Czech anti-corruption NGO, “Pink Panther”. The case arose out of a press release concerning a widely publicised case concerning tax evasion in relation to light heating oils (called “LTO”). The press release asked a number of questions in relation to the case. the

Background

The press release published by the applicant was addressed to IL, the then Vice-President of the Chamber of Deputies, (later Interior Minister) and invited him to clarify his relationship with certain persons, including TP. The relevant part read as follows [6]:

About five years ago IL took part in an expedition to Kilimanjaro where he met, according to him by coincidence, VK who sold light heating oils and who had just been sentenced for preparing a murder. 
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Aarhus and environmental judicial review: cracking legal costs per Jackson LJ

2 February 2012 by

In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims, in which  the Ministry of Justice wheeled out its proposals to get it out of the various scrapes caused by the expense of environmental challenges.  The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and both the European Commission and the Aarhus Compliance Committee don’t think that the English system complies – it costs way too much.

In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.

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Coogan and Phillips v NGN – give a thought to the under-privileged – Kirsten Sjovoll

1 February 2012 by

Coogan and Philips v News Group Newspapers [2012] EWCA Civ 48 –read judgment

The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation. The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).

Background

Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”. Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters. He refused, invoking PSI.
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