Same-Sex Marriage, Child Protection and Extraordinary Rendition – The Human Rights Roundup

17 December 2012 by Daniel Isenberg

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.

Same-sex marriage continued to dominate the news this week, with the Church making its views known on the government’s proposals.  Meanwhile, the Supreme Court has been making delicate decisions about the rights of young persons to anonymity in proceedings relating to allegations of abuse.  It would not be a newsworthy week were there not some reference to prisoner voting, and this week the UK was given a pre-emptive warning by the Council of Europe on the matter.  Finally, commentators have been anticipating the imminent publication of the findings of the Commission on a Bill of Rights.

by Daniel Isenberg

In the news

Here comes the Bill of Rights Commission report… maybe

With the report of the Commission on a Bill of Rights due to be published soon (according to the Sunday Telegraph, this Tuesday), the relationship between the Human Rights Act and any potential ‘British Bill of Rights’ is rarely out of the news. Look out for our coverage of the Commission’s report later this week.

This week, Professor Francesca Klug has argued that the Human Rights Act is a UK bill of rights “in all but name” and claims that its Conservative opposition arises not out of the rights it upholds, but its European origins (despite a heavily British authorship).  The Labour government which enacted the HRA is not without Klug’s censure, as she argues there should have been broader public education when the law was originally passed.  Meanwhile, former member of the Commission, Michael Pinto-Duschinsky, pessimistically predicts a vague report and suggests that a ‘too literal’ approach to the terms of reference will have limited the scope of the Commission’s inquiry.

Same-Sex Marriage

Following on from Adam Wagner’s pieces on this blog (here and here), the government’s proposals to legalise same-sex marriage have thrown up questions of the competing rights to freedom from discrimination on the basis of sexual orientation and freedom of religious expression – see the Government’s consultation response and fact-sheet.  The Economist provides a useful outline of the debate, including the role Strasbourg may come to play in it.  Meanwhile, the Church of England has complained about the consultation process for the government’s proposals.

The UK Constitutional Law Blog provides an interesting take on this issue, examining a recent case in the Italian courts which, while not fully accepting the constitutionality of same-sex marriage, does develop the Italian courts’ understanding of the concept of ‘family’.

Child Protection and Privacy

This was also an interesting week for questions around the protection of children’s identities, and Robin Hopkins on the Panopticon blog has provided two very worthwhile reads.  The first relates to Re A (A Child) (see ‘In the Courts’ below), where the Supreme Court attempts to “reconcile the irreconcilable”, ultimately concluding that the rights to family life and a fair trial of the alleged perpetrators of abuse outweigh those to anonymity, in these particular circumstances, of the alleged victim.  Competing rights also feature in Robin Hopkins’ second post on the balance between transparency on the one hand, and the protection of children through anonymity on the other.  He argues that in cases involving serious incidents relating to children, those deciding on disclosure should err on the side of careful redaction.

Rendition

With the Justice and Security Bill stirring up debate, the security services have found themselves at the centre of the news over the past few weeks, and this was no exception.

Firstly, the government has agreed to pay £2.2m to Libyan dissident Sami al-Saadi and his family, to settle his claim that MI6 were involved in his rendition from Hong Kong, following which he was tortured by the Gaddafi regime.  Nevertheless, the Foreign Office has stated that any settlement does not amount to an admission of liability.

The European Court of Human Rights has also been vocal on the issue of rendition this week, with the Grand Chamber finding in El-Masri v The Former Yugoslav Republic of Macedonia (read press release) that the Macedonian government breached (amongst other things) Article 3 of the ECHR – the prohibition against torture and inhuman or degrading treatment – through its treatment of Khaled El-Masri, and his transfer to US authorities as part of a ‘rendition’ operation.

Kanstantsin Dzehtsiarou makes some interesting points about this decision on the ‘Human Rights in Ireland’ blog about the Court’s fact-finding role, and its choice in making such a finding against Macedonia, rather than a “more influential” member state.

The Finucane Review

The security services also made the news through the publication of the Pat Finucane Review, which looked at the possible complicity of the UK government in the murder of a Belfast solicitor by loyalist paramilitaries; the summary and chief findings of which can be found here.  Colin Murray observes that the report does not blame UK government ministers for the approach taken to security at the time, though reads this latest publication in the light of earlier reviews by Lord Stevens and Peter Cory, as revealing certain state agencies as ‘turning a blind eye’ to some loyalist paramilitary activity.

Litvinenko Inquest

Joshua Rozenberg has provided a useful analysis of the issues raised by the current Alexander Litvinenko inquest – central among these will be Sir Robert Owen’s views on whether Article 2 of the ECHR is engaged: did the UK government fail in a duty to protect Litvinenko’s ‘right to life’?

Also in the News

Alex Bailin QC on the Inforrm Blog has highlighted the Law Commission’s consultation on reform of contempt of court, and his criticisms of the proposals are well worth a read: ranging from trials for ‘juror research’ not being by jury, to his thoughts on whether such an issue is realistically able to be managed.

Whilst the Home Secretary has been making a speech on immigration, and her views on why it should be controlled, the High Court has held that where the applicant cannot afford the fee, charging for a human rights-based immigration application may be a breach of human rights in itself.

Prisoner voting has managed to make the news once again this week, with the Council of Europe gently nudging the UK by issuing a formal reminder of its duties to implement decisions of the Court.  However, the issue will not be revisited until next September.

Some other interesting thoughts this week are provided by Michael Uberoi on the makeup of the Hillsborough Independent Panel rather than a judicial inquiry; Ashley Hurst also delivers his thoughts on the Joint Committee on Human Rights’ report on the Defamation Bill; and the ever-fascinating ‘Without Prejudice’ podcast this week focuses on same-sex marriage, Labour’s ‘Leveson Bill’, secret courts, and plans to reform judicial review.

In the courts

R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434 – Judge orders anonymisation of a convicted rapist in order to protect the identity of his victim

A (A Child) [2012] UKSC 60 – Social work records of allegedly abused woman should be disclosed in child proceedings where her alleged abuser is the father

X v Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59 – Volunteers not entitled to disability discrimination protection as volunteer activities are not an “occupation” with the meaning of the EU Framework Directive -[see also summary here]

The British Humanist Association & Anor v London Borough of Richmond Upon Thames & Ors [2012] EWHC 3622 (Admin) –  British Humanist Society loses High Court challenge to building of Catholic state school in Twickenham –  [see also Rosalind English’s blog post here]

Upcoming Events

The UKHRB now has an additional feature on the right sidebar of the website – the events list. To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Refugee and Migrant Children and Young Persons’ Rights in Scots Law Legal Services Agency, Glasgow, 15/1/13, 10am-1pm, £60-£150
• Human Rights: Alternative Enforcement Mechanisms – 14 January 2013 Doughty Street Chambers

UKHRB posts

• High Court rejects Humanist Association’s challenge to faith school proposals in Richmond – December 15, 2012 by Rosalind English
• Volunteers not entitled to protection of disability discrimination laws – December 14, 2012 by Rosalind English
• Quicker, costlier and less appealing: plans for Judicial Review reform revealed – December 13, 2012 by Adam Wagner
• From base pairs to the bedside: medical confidentiality in a changing world – December 12, 2012 by Rosalind English
• Permanent injunction against anti-vivisection protestors – December 12, 2012 by Rosalind English
• Whose voices count in our human rights debate? – December 10, 2012, by Sanchita Hosali

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