Sumption’s Speech, Settling and Secret Justice – The Human Rights Roundup

21 May 2012 by

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

This week saw some commentary on Lord Sumption’s latest speech, which may indicate further advances into the domain of the government by the judges, and on secret justice and vicarious liability for Catholic priests. There have also been two important new decisions on child tax credit for separated parents and when costs will be awarded in settled judicial reviews under the Housing Act.

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The podcasts and full presentations by 1 Crown Office Row barristers Shaheen Rahman, Adam Wagner and Matthew Hill for UKHRB’s million-hit seminar are now available. The major topics: the Brighton Declaration, Article 8 and when States are complicit in torture. Check them out here if you missed the seminar.

In the news

Lord Sumption’s Speech: Foreign Affairs in the English Courts since 9/11

Read the speech itself here. It presents the successive development of the law relating to judicial control of the prerogative powers of the executive, from the landmark GCHQ case in the 1980s, which determined that foreign policy is not reviewable, to more recent cases that suggest that this attitude is being eroded. ObiterJ commented on the speech, seeing it as a statement of intent to expend judicial competence into foreign policy areas (at least as far as Lord Sumption is concerned).

Joshua Rozenberg, in his article in the Guardian, agrees, concluding that “If Sumption has anything to do with it – and now of course he does – the foreign secretary of the day will soon be held to account in much the same way as the Home Secretary is already.” However, there are limits: Sumption said that this doesn’t mean the judges will start actively directing Ministers on foreign policy, or allow the Human Rights Act to be used to challenge major foreign policy decisions by the government. Another view can be found in Rosalind English’s analysis of the speech.

Division of child tax credit

The current rule on child tax credit (CTC) was unsuccessfully challenged as discriminatory against men in the recent Humphreys case. The Supreme Court held that the current scheme, which allows only ONE parent to receive CTC, whichever has the child for more time (usually the mother) is not discriminatory under the Human Rights Act, being justified on the basis of preventing child poverty. In this particular case, the mother did have the child for the majority of time, but only by 1 day per week, making this decision quite harsh on the father. Rosalind English, writing for UKHRB, commented on this case, breaking down the court’s reasoning in some detail.

Carl Gardner, posting on HeadofLegal, also commented, concluding that  the decision reached was fortuitous, as the issue of what remedy could actually be granted had the appellant succeeded is a difficult one. He also points out Lady Hale’s parting shot: that it would be better if the judges were given back their ability to micromanage CTC in these situations (impossible while the statute exists), though Gardner himself doubts whether this would be better in practice.

Housing and human rights

The M v London Borough of Croydon case, decided last week, involved the important issue of costs in settled judicial reviews for s. 204 Housing Act 1996 Homeless appeals. This week, NearlyLegal posted commentary on this case that aptly summarises its impact – the result is favourable to claimants, as the usual arguments put forth by Defendants to defeat an order for costs being made against them (such as settling not being related to the merits of the case, being a practical decision instead) will now only succeed if the defendant has a particularly good reason. The presumption is now that the Claimant is entitled to his costs.

Vicarious liability for sexually abusive priests

Owen Bowcott, writing in the Guardian, summarises the positions of each side in a “test case” (currently in the Court of Appeal), in which the claimant seeks to make the trustees of a Catholic diocese vicariously liable for a priest’s abuse of the claimant. The trustees deny liability because the priest was a “co-operator and collaborator” of the bishop, rather than someone subject to his direct control, and to rule in favour of the claimant out of “sympathy” would be to unjustly extend the principle of vicarious liability. Elizabeth-Anne Gumbel QC and Justin Levinson of 1 Crown Office Row, for the claimant, contend that the priest was given his position and authority by the trustees, and to find they could not be liable for the priest’s crimes would be to make the Roman Catholic Church immune from vicarious liability for the crimes of priests, leaving many claimants without remedies.

The Crime and Courts Bill

The Government proposes to scrap the full right of appeal for those applying to enter into the UK as family visitors (again – this was introduced by the last Conservative government, and repealed when Labour got into power) in order to save costs. You can read the government’s press release, detailing the proposals for the Crime and Courts Bill, here. The proposals were comprehensively criticised by the Free Movement blog, who doubts that the proposals will actually save much money at all. The BBC also reported on this issue, quoting the Immigration Minister Damian Green as saying that these proposals are denying immigration lawyers the “goldmine” that immigration cases represent. Freemovement strongly disagrees with this “revolting” comment, stating that the only losers will be the ethnic minorities whose families are denied access to the UK for family events.

Public interest in journalism – a warning not to go too far with Leveson

Alex Bailin QC and Edward Craven of Matrix Chambers posted this week on Inforrm’s blog on the need for a public interest defence in investigative journalism, to provide some special protection for the media so that it can perform its vital function. In the context of the Leveson inquiry, the posters see a danger of throwing the baby out with the bathwater – of making genuine investigative journalism a casualty of the inquiry. A public interest defence already exists for libel (the Reynolds “responsible reporting” defence), and, Bailin and Craven argue, should exist also for investigative journalism, rather than leaving genuine investigative journalists at the mercy of prosecutorial discretion, no matter how benevolent and structured the guidelines are.

Secret Justice

Also this week, in an answer to a question posed by a Labour MP, the under-secretary of state for justice stated that information on how many times a closed material procedure has been used in an employment tribunal in each of the last 10 years “is not readily available or held centrally and could be obtained only at disproportionate cost”. This response naturally troubled Lawrence McNamara, who wrote an article explaining his view in the Guardian this week. There is no recording or reporting on how often materials are closed, and the Justice and Security Green Paper contains no proposals to record this – meaning we not only won’t know what is excluded, but also how often proceedings are “closed” – and the government seems to think that it would be “disproportionately” expensive to find out, which must indicate a low regard for open justice.

In the courts

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 The Court of Appeal held that the dismissal of a consultant Cardiologist from the NHS Trust was not a breach of his Article 6 rights, as they were not engaged by the dismissal.

MM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668 The Secretary of State acted lawfully in not ordering an independent inquiry into the 2009 protest at the Immigration Detention Centre. The challenge was brought by children separated from their parents during protest and claiming psychiatric damage as result.

British Sky Broadcasting Ltd & Ors, R (on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) Sky, BBC, ITN etc. succeed in Judicial Review of decision by court to order production of 100+ hours of video footage to Essex Police of Dale Farm protesters on the basis that “… there were no reasonable grounds for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation”.

Humphreys v Revenue and Customs [2012] UKSC 18 Supreme Court: paying child tax credit to “main” care giver not discriminatory (under art.14 ECHR) to father who was caring for the child 3 days per week. The specific test for justifying discrimination in the context of state benefits is that with questions of social and economic strategy the Court will generally respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”.

Hounga v Allen & Anor [2012] EWCA Civ 609 Court of Appeal: Nigerian au pair knowingly working illegally in the UK cannot bring racial discrimination claim against “employers”. Daniel Abnett on his Employment Law blog commented on this case, explaining that a major factor defeating the claim was the fact that the claimant sought to rely on her own illegal actions in court, despite the court accepting that she was a vulnerable person.

Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 Provision of housing benefit to severely disabled claimants was too low and therefore discriminatory, rules High Court.

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