Equal Marriage U.S. Style, Religious Harassment & Where is That Rendition Report – The Human Rights Roundup

7 April 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.

A relatively quiet week on the news front, with courts having a well-earned Easter break.  Just a few items to focus on, with commentary appearing following the US Supreme Court’s oral hearing on the same-sex marriage.  The Employment Tribunal has found that conference motions and debates surrounding Israeli boycotts do not constitute anti-Semitism; and assistance is out there for litigants in person following the enactment of LASPO.

by Daniel Isenberg

In the News

Discrimination Cases at Home and Abroad

A couple of cases relating to discrimination and harassment in this week’s news.  Firstly, making headlines all over the world is the question of the constitutionality of America’s Defense of Marriage Act (DOMA), with Lyle Denniston on the UKSC Blog providing a useful background to the current litigation.  He also gives his expectation that if the Supreme Court rules narrowly, without deciding whether marriage equality for same-sex couples is guaranteed under the Constitution, the legal momentum behind this campaign may ‘slacken’,  but the political debate would continue and the issue would likely return to the Supreme Court at a later point.

Karl Laid, meanwhile, on the Oxford Human Rights Hub, gives his take on the issue with an array of commentary from the opposite side of the pond.  Of significant interest is the view that Justice Kennedy holds the casting vote in the possible invalidation of DOMA, but he may do so using the analysis that marriage is a state, rather than a federal, matter – this would mean he would also uphold California’s controversial prohibition on same-sex marriage.

In the UK, the Employment Tribunal recently gave judgment in the case of Fraser v University and College Union, finding against the claimant who felt that motions and debates at UCU’s annual conference relating to boycotts of Israeli academic institutions constituted ‘institutional anti-Semitism’. You can read Adam Wagner’s guest post on the Cartoon Kippah blog for his take.

The 11KBW Employment Law Blog provides a useful summary of the judgment – in particular the tribunal found that the Union could not be vicariously liable for the conduct of fellow-members or motions passed at the conference; and that an attachment to Israel could not be considered an intrinsic part of Jewishness for the purposes of a ‘protected characteristic’.

Love to hate human rights

Over at the Inforrm Blog, a repost from the Hacked Off campaign group on the right wing press’s new found love for human rights law over press regulation: Leveson: Papers that hate human rights – except when it’s their rights. For more on this topic, see Adam Wagner’s post from December 2012: Mail finds new love for Human Rights Act

On a similar topic, Justice Secretary and Lord Chancellor Chris Grayling is interviewed in the Sunday Telegraph: Tory attack dog Chris Grayling comes off the leash. The interview is interesting, although it may make depressing reading for lawyers. He says of human rights that the Tories “are better off “making sure we can deliver real change at the first possible opportunity.” He has, he reveals, presumably with his party hat on, been taking “expert legal advice” to plot the way forward.

The artificial insemination red herring

Amongst the few items that made the news this post-Easter week, a number focused on the impact of Europe – both of the EU and the ECHR.  Firstly, Richard Edwards on the Euro Rights blog argues that Chris Grayling’s concerns about the ECHR giving prisoners the right to artificial insemination is actually a ‘red herring’.  He observes that the current UK policy is not significantly different from that which existed before the ECtHR’s decision in Dickson, and that the Justice Secretary’s call for a policy review with a view to an outright ban is mere spin – any blanket prohibition will clearly be disproportionate and a breach of Article 8(2).

Meanwhile, the 11KBW Education Law Blog asks: “what kind of restrictions can higher education institutions permissibly impose on prospective students?”  The ECtHR in Tarantino v Italy found that a cap on places for particular courses did not contravene the right to education found in Article 2 of the First Protocol to the ECHR.  The caps on medical and dentistry places due to university resources and the number of members of those professions needed by Italy was found by the Court to be in pursuit of a legitimate aim and within states’ ‘margin of appreciation’.

Here come the Bulgarians and Romanians 

The National Institute of Economic and Social Research (NIESR) has published a report into the potential impact on the UK of migration from Bulgaria and Romania, following their accession to the EU.  The key findings are that the main destinations for migrants from these countries are likely to be Spain, Italy and Germany; and that those who migrate to the UK are likely to be young, without families and engage in lower skilled work.  However, the report also notes that a possible increase in pressure on the UK education infrastructure as a consequence of migration, but there is unlikely to be a significant impact on health services.

Timely News

Of matters temporal, the first is a delay, with The Guardian noting that nine months after its completion, the Sir Peter Gibson (formerly of the Gibson, or Rendition Inquiry – see this post for background) interim report into UK involvement in post-9/11 rendition and torture remains unpublished.  The government has promised that ‘as much of this report as possible will be made public’, but has not commented on the current delay.  UN Special Rapporteur on Counter-Terrorism and Human Rights, Ben Emmerson QC, has called on both the UK and US government’s to publish their respective reports into rendition.

April is also the time of the coming-into-force of much of LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012), which has severely cut legal aid.  The ICLR blog provides guidance to the increased number of litigants-in-person, with a guide to publications which provide assistance in bringing claims and representation in court.  It also praises the Bar Council for ‘responding in admirable fashion’ to LASPO with its ‘A Guide to Representing Yourself in Court’.

Coroners consultation

It is also time for you to contribute to the MoJ’s consultation on coroner reforms.  There is an online questionnaire available, regarding the implementation of the Coroners and Justice Act 2009, focusing particularly on new coroners regulations during the investigation process; new coroners rules governing practice and procedure and inquests; and regulations on allowances, fees and expenses for investigations and inquests.

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.

• Venice Academy of Human Rights 8-19 July 2013: “a forum for the exchange, challenge and innovation of ideas and expertise for participants who are at an advanced stage of their career”
• Justice, Equality, Unity: Manor Gardens Public Lecture,… – Eventbrite Wednesday, 17 April 2013 from 19:00 to 21:00 (BST) – £10 (for charity)
• Be a Human Rights Lawyer – Careers Event 7 May 2013 from 13:00 to 16:00 at the Law Society, Chancery Lane

UKHRB posts –

• We shall fight, on the beaches – April 6, 2013 by Rosalind English
• 4 slaughterhouses hit high fives: Article 6(1) breaches found  – April 6, 2013 by David Hart QC
• Enforcement of custody in the face of children’s dissent: should law prevail? – April 4, 2013 by Rosalind English
• Policy allowing cross-gender searches in prisons not unlawful, says High Court – April 4, 2013 by Rosalind English
• Last week not a good one for Theresa May: not just Abu Qatada – March 31, 2013 by David Hart QC