More Same-Sex Marriage, Immigration/Extradition, and Russia in the Dock – The Human Rights Roundup

10 February 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.

Same-sex marriage was the talking point of this week, with the Bill passing its first vote in the House of Commons.  The courts have also been passing judgment on various acts of the police and the UK military; and immigration, asylum and extradition remain in the headlines.  Keep an eye out on some interesting cases from Russia reaching Strasbourg; and a double-header of events featuring former ECtHR President Jean-Paul Costa (see ‘Upcoming Events’).

by Daniel Isenberg

In the news

Same-Sex Marriage

With the Marriage (Same Sex Couples) Bill making safe passage through its first Commons vote this week, unsurprisingly it dominated the headlines.  The House of Commons Library Research Paper on the Bill proves interesting reading – providing analysis by Karon Monaghan QC of key questions in the debate, including implications for schools; obligations (or otherwise) for religious institutions; and human rights implications. The Department of Culture, Media and Sport has also produced its own legal opinion and resources, in response to the Coalition for Marriage’s legal opinion (summary here) from Aidan O’Neill QC.

Jonathan Jones on The Spectator examines various responses to the question of the European Court of Human Rights compelling religious institutions to conduct same-sex marriage ceremonies, reaching a general consensus that the Court allows states a wide ‘margin of appreciation’ in such a sensitive area.  The Family Lore blog sees the passage of the Bill as “a considerable step towards a more equal and inclusive society”, whilst Karl Laird at the Oxford Human Rights Hub notes that the Commons vote marks the end of “a pernicious form of discrimination that should have been recognised as such and remedied long ago.”

Marc de Werd, Justice in the Amsterdam Court of Appeal takes the issue of same-sex marriage as an entrance into the broader question of how courts adjudicate on sensitive moral issues.  De Werd argues that on such issues a ‘bottom-up’ approach is appropriate – with national courts taking the lead.  The Court in Strasbourg is wary of accusations of being “activist” or lacking “democratic legitimacy”, and, as such, recent case law reflects the Court’s attitude “that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society.”

Humiliating, or not Humiliating?

Four news pieces this week on the lawfulness of various acts of punishment, containment and interrogation.  Firstly,  a Judge at Central London County Court ruled that Gloucestershire Police had breached anti-war marchers’ rights to freedom of expression and freedom of peaceful assembly when coaches were stopped en route to RAF Fairford in 2003.  This ruling followed those from the High Court and Court of Appeal that had already declared the police’s actions as unlawful.

By contrast, as the case was reported in last week’s roundup, the BBC notes that the UK military interrogation technique of a “verbal short sharp shock” does not constitute “torture, cruel, degrading or inhuman treatment” and so does not breach Article 3 of the ECHR.  Such a technique, however, is not currently employed by UK forces in Afghanistan.  ObiterJ on the Watching the Law blog has highlighted various claims in a recent report produced by the Open Society Justice Initiative (OSJI) relating to the CIA’s programme of rendition and detention.  These include allegations that the UK assisted in cases of rendition; supplied questions to CIA detainees; and provided its airports and airspace for rendition flights.

Following Chris Grayling’s defence of smacking children, the UK Criminal Law Blog provides a tongue-in-cheek legal analysis of whether he could be prosecuted for having smacked his own children.  Whilst their reasoning leads to a conclusion that it would be “very unlikely” that the Justice Secretary could be prosecuted, it interestingly notes that section 58 of the Children Act 2004 has removed any defence of ‘reasonable chastisement’ applying to ABH, GBH or child cruelty.

Immigration and Extradition

Following Rosalind English’s UKHRB post on the matter, the UK Immigration Law Blog has also provided some commentary on the recent Izuazu judgment of the Upper Tribunal.  The first of two posts hopes that this latest ruling will ensure proportionality assessments are a key feature of First Tier Tribunal judgments.  The second emphasises the Upper Tribunal’s view that the Secretary of State had overstated the significance of the new immigration rules: where applicants do not meet the rules’ requirements, it will be necessary to continue to make an assessment under Article 8.

The Free Movement blog has an interesting piece featuring scientific research on the ability to recollect traumatic experiences and the impact of this on asylum applications and interviews.  The author challenges the UKBA’s approach of challenging evidence, and suggests the structure and procedures of interviews inadvertently make the process more difficult for asylum applicants.  Meanwhile, the government has revealed plans that ministers will no longer have any say in appeals on extradition cases; instead, appeals on human rights grounds would be to the courts.  The Guardian adds, however, that reform is complicated, and under the proposed system, as currently described, Gary McKinnon could have been extradited.

Russia and the Strasbourg Court

A few upcoming Russian cases to keep an eye out for in the European court of Human Rights.  The first relates to the adequacy of Russia’s investigation into the 1940 Katyń massacre.  Criminal proceedings relating to these mass murders lasted until 2004, at which point the investigation was discontinued.  The ECHR blog points to two other cases: the first is an application from members of the notorious Pussy Riot punk band, that the Russian state “violated their freedom of expression, fair trial rights, right to liberty and right to be treated humanely in detention”.

Additionally, the blog points to a case brought by eleven NGOs against the ‘Foreign Agent’ Law, which classifies NGOs receiving foreign funding and being politically active as ‘foreign agents’, subjecting them to various restrictions.  The NGOs claim, amongst other things, that this restricts their rights to freedom of association and assembly.  One to keep an eye on.

In the Courts

The Pharmacists’ Defence Association  Union(PDAU) v Boots Management Services Limited – TUR1/823/ 2012 – Article 11 decision: Pharmacists union can apply to represent pharmacists in Boots in collective bargaining

Sandiford, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWHC 168 (Admin) – High Court refuses to mandate FCO to pay for Indonesia death sentence woman’s appeal lawyers

The Children’s Rights Alliance for England, R (on the application of) v The Secretary of State for Justice [2013] EWCA Civ 34  – No requirement under human rights law for Secretary of State to provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres – interesting postscript on Ullah (principle of doing no more but certainly no less than Strasbourg)

Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) – Upper Tribunal gives short shrift to new Immigration Rules

Hall, R (on the application of) v University College London Hospitals NHS Foundation Trust & Anor [2013] EWHC 198 (Admin) – Medical treatment of severely disabled drug smuggler in prison did not breach his Article 2/3 ECHR rights

Upcoming Events

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.

• The Power of Literature and Human Rights Saturday 2 March 2013, 11am-12.30pm, LSE Wolfson Theatre, New Academic Building
• ‘The Relationship Between the European Court of Human Rights and National Constitutional Courts’? Jean-Paul Costa Friday, 15 February 2013 at 17:30. Cambridge University
• In Conversation with Jean-Paul Costa – LSE  Thursday 14 February 2013, 6.30-8pm, Hong Kong Theatre, Clement House
• Legal Aid in crisis conference Manchester, Saturday 9 February 2013
• The Kurdish population in Turkey. Time for Justice and a roadmap towards reconciliation 20 February 2013 17:30 – 20:00, The Law Society, 113 Chancery Lane
• “Freedom from Hunger: Realising the Right to Food in the UK” A lecture by the United Nations Special Rapporteur on the Right to Food, Professor Olivier de Schutter. (18 February 2013, Doughty Street Chambers, 18:00-19:30)

UKHRB posts

• No, The Sun, the Human Rights Act is not the EU – Adam Wagner
• Does the state owe a duty to inform the wronged? And Ullah revisited – David Hart QC
• No cash from the UK to avoid Indonesian firing squad – February 8, 2013 by Rosalind English
• Another Iranian bank released by the EU – Wikileaks here as well – February 7, 2013 by David Hart QC
• Mid Staffs Inquiry report: Human rights abuses need human rights solutions – February 6, 2013 by Sanchita Hosali
• Mid Staffordshire Public Inquiry report published – February 6, 2013 by Adam Wagner
• Another critique of the new Immigration Rules’ codification of Article 8 – February 4, 2013 by Rosalind English