Government U-turn on EHRC’s General Duty – Neil Crowther

EHRC-logoThe Government abandoned its plans to repeal the ‘general duty’ of the Equality and Human Rights Commission (EHRC) under the Equality Act 2006 (the Act) last week, but insisted upon amendments to the EHRC’s duty to monitor progress on equality and human rights.

The general duty in section 3 of the Act sets out why the EHRC exists and the aims towards which it should be working, namely that it:

shall exercise its functions…with a view to encouraging and supporting the development of a society in which

(a) people’s ability to achieve their potential is not limited by prejudice or discrimination,

(b) there is respect for and protection of each individual’s human rights,

(c) there is respect for the dignity and worth of each individual,

(d) each individual has an equal opportunity to participate in society, and

(e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

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Denouncing Human Rights, Legal Aid Woes and Animal Rights Advertising – The Human Rights Round

Christian rights case rulingWelcome back to the UK Human Rights Roundup, your regular potpourri 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, in order to deport Abu Qatada, there have been mumblings of a temporary departure from the ECHR. Furthermore, Justice Secretary Chris Grayling’s legal services reforms lead to a strike in the North, and the recent ECHR decision to allow the UK’s ban on political advertising continues to generate discourse.

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Chagossians: Wikileaks cables not admissible in court

9780199275670Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment   UPDATED

A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.

I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

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Genetic testing of children up for adoption

12280487228O6zG0Y and Z (Children), 25 April 2013 [2013] EWHC 953 (Fam) – read judgment

Having children is a lottery. No judge or court in the land would sanction the regulation of childbearing, however feckless  the parents, unsuitable the conditions for childrearing, or unpromising the genetic inheritance.

Adoption on the other hand is stringently regulated, set about with obstacles for prospective parents, and strictly scrutinised by an army of authorities backed up by specialist family courts and a battery of laws, statutory instruments and guidance papers. Usually the filtering is in one direction only: the suitability of the parents to the child or children up for adoption. But sometimes it goes the other way, and this case raises the fascinating and somewhat futuristic question of whether children’s chance of finding a suitable home might be increased by genetic testing.

The circumstances were somewhat exceptional here, since the local authority had ascertained from the biological father  of the two young boys in question that they might have a chance of inheriting a rare genetic disorder of the central nervous system. Huntington’s Chorea is caused by a single gene mutation on chromosome IV and causes damage of the nerve cells and areas of the brain which in due course leads to severe physical, mental and emotional deterioration. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease.  Continue reading

Denounce the ECHR to deport Abu Qatada… You cannot be serious! – Richard A. Edwards

mcenroeThe Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.

Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?

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Judicial Review reform: What does “totally without merit” mean? – Paul Bowen QC

Chris Grayling, justiceWhat is the test the Court should apply in deciding whether an application is ‘totally without merit’?  The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’.  A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.

This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.

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What is the UK Supreme Court? Head to YouTube to find out (with cheesy muzak)

The Supreme Court has produced a rather excellent short YouTube video about what it does. Look out for interviews with Justices, a funky 3D representation of the UK court system, a bit of court action and of course, cheesy muzak. 

Regular readers will know I am a big fan of the Supreme Court’s efforts to be accessible to the public, which stand in stark contrast to the almost non-existent efforts of the rest of the UK justice system. You can find an article about the video by the court’s Chief Executive here and one reviewing the court’s innovations here.

Enjoy!

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