Royal Interference, CourtTube and Religious Freedom – The Human Rights Roundup

27 January 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your recommended weekly dose 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.

Commentary on the Eweida Christian cross case continued to dominate legal commentary this week, some of it critical of the European Court of Human Rights. Bloggers have also welcomed the go-live of the Supreme Court’s online archive of judgment summaries.  Some interesting cases in the courts this week this week relating to attempts to use the European Convention on Human Rights in a housing dispute, as well as (in a similar vein) a local council’s ability to withhold details of vacant properties from potential squatters.  Keep an eye out next week for the publication of the Mid-Staffordshire NHS Trust Public Inquiry on 5th February.

by Daniel Isenberg

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In the news

Eweida Commentary

The online human rights world this week has continued to focus its analytical energies on the recent European Court of Human Rights decision in Eweida and Others v UK – the group of cases relating to religious freedom in employment disputes (see Rosalind English’s blog post on the cases here).  Following from the commentary provided in last week’s roundup, Clare Overman has pointed to the Court’s focus on national authorities’ “margin of appreciation”, without conducting its own investigation into the competing rights.  She argues that this undermines the Court’s credibility, and points to a failure to explore the rights in question.

Writing in The Lawyer, Cherie Booth QC cautions that, contrary to some views, the judgment does not provide workers with an absolute right to wear religious dress or symbols in the workplace”.  Rather, it requires that employers be “particularly cautious” in denying this to employees, especially where such symbols are relatively inconspicuous.  Similarly, Dr Iyiola Solanke stresses that the Court has not given a universal answer to questions surrounding the extent that Article 9 of the ECHR (freedom of thought and religion) is a qualified right – rather, the qualification depends on the interest with which the right is competing.

Two other pieces of commentary have focused on the other aspect of the Court’s recent rulings: not on the wearing of crosses, but on those who objected to providing services (civil partnership registration and counselling) to same-sex couples.  Paul Johnson views the Eweida judgment as significant, however he echoes Clare Overman’s concerns above, that by relying on the “margin of appreciation”, the judgment is “empty of moral reasoning or insight”.  Stijn Smet takes this line of argument further by suggesting that the employment of the “margin of appreciation” allowed the Court to reach its intended conclusion without providing normative reasons for doing so.

Open and Closed Justice

Closed justice remains in the limelight with the Law Society claiming that the Justice and Security Bill, which reaches Committee Stage in the House of Commons tomorrow (29 Feb), undermines essential principles of justice; and whilst the recent High Court ruling that the claims against an undercover police officer will be heard behind closed doors in the Investigatory Powers Tribunal, Liz Campbell points out that in Ireland there is no legislation governing the handling of covert human sources. Meanwhile, Anthony Peto QC and senior Tory Andrew Tyrie MP have produced a critical report for the Centre for Policy Studies, Neither Just Nor Secure.

Nevertheless, it was open justice which stole the show this week, with the opening of the Supreme Court’s YouTube channel, where viewers can watch on-demand summaries of judgments being delivered.  Adam Wagner’s UKHRB post on this development has been posted on the The Guardian here.  The Supreme Court’s own website explains that these summaries set out the background to appeals; the decision reached by the Court; and their reasons for doing so.  Nathalie Falot identifies potential issues were full proceedings to be kept in an online archive, based on both privacy concerns and copyright, should internet users make supplementary use of the clips.  In a similar vein, Parliamentary Select Committees are making use of Twitter as a means of garnering questions from the public in their role in holding ministers to account.

Freedom of Information

An important victory for Camden Council is highlighted this week on the Panopticon blog, with the First Tier Tribunal holding that it was entitled to withhold information from a requestor, who sought to identify vacant properties in the area (the ‘Camden squatters’ case).  The Tribunal held that the public interest in this matter also related to realistic indirect consequences of disclosure, which in these cases various crimes.

Richard Taylor, meanwhile, calls for wider publication of court listings; and points to a request he personally made under the Freedom of Information Act for listing information.   He notes that some of the details cannot be made public for reasons of victim protection, but would like courts to redact listings in advance and publish them as widely as possible.

Hidden power of the royals

A few comments on constitutional affairs this week: firstly, Tom Adams provides his views on the ‘hidden power’ of Royal Consent.  Whilst Royal Assent has not been denied on legislation since the reign of Queen Anne, Royal Consent, he points out, has not been given to bills on at least three occasions since 1990.  Whilst the Queen has only ever done so on the advice of government, Adams still objects as this procedure effectively gives the government of the day a veto over Private Members’ Bills.

Damian Green has admitted in Parliament that, while the government is currently reflecting on the report of the Commission on a Bill of Rights, it will not be publishing a formal response.  Laura Kennedy has also highlighted the first challenge to an Act of the Scottish Parliament on the grounds that it related to one of the ‘reserved matters’ contained in schedule 5 of the Scotland Act.  A case comment is available here – crucially the Supreme Court held that its task was simply one of statutory interpretation in these cases.

Interesting Takes on Human Rights

Liberty have outlined the story of Diane Blood and the crucial role that the Human Rights Act played in her victory in having her late husband’s name recorded on her sons’ birth certificates.  Richard Ekins, meanwhile, takes a more critical eye to the HRA, arguing that its extension to laws whenever enacted is reckless, overturning unambiguous provisions of earlier law with no caveats or qualifications.

In the courts

Sims v Dacorum Borough Council [2013] EWCA Civ 12 There is incompatibility between the rules of English property and contract law relating to the termination of a joint tenancy by one joint tenant and the ECHR (see Rosalind English’s blog).

Upcoming Events

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• Human Rights Lawyers Association Student Judicial Review Competition
  Deadline for entries: 4 February 2013

UKHRB posts

• Joint tenancy rule has nothing to do with Convention rights – January 25, 2012 by Rosalind English
• Equal marriage on the way as Bill published – January 25, 2012 by Adam Wagner
• Legal advice privilege should not extend to accountant’s advice, says Supreme Court – January 24, 2012 by Rosalind English
• Context is everything – European Court of Human Rights struck out 99% of UK cases in 2012 – January 24, 2012 by Adam Wagner
• Judging people – and a case about a Porsche 917 – January 23, 2012 by David Hart QC
• Who owns the copyright on barristers’ advocacy? – January 22, 2012 by Emily Goodhand
• UK Supreme Court judgment summaries on YouTube… now we need the full hearings – January 21, 2012 by Adam Wagner
• Poll: Should the UK Supreme Court put recordings of entire hearings on YouTube? – January 21, 2012 by Adam Wagner