EU Law v Immigration Bill, Right to Die and Reform, Reform, Reform – The Human Rights Roundup

19 May 2013 by

Human rights roundup (NEW)Welcome back to the UK Human Rights Roundup, your regular legal melting pot 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.

Not the right to life, but the right to die dominates the human rights headlines this week, with separate litigation in Strasbourg and the Strand.  Commentary abounds on not just the ECHR’s role in domestic law, but how proposed reforms comply with EU law, particularly on the immigration front. Finally, a wide range of human rights approaches to much of the coalition’s plans for this Parliament.

by Daniel Isenberg

In the News

Europe and the Powers of Parliament

Europe, in the human rights world, often means Strasbourg (where the European Court of Human Rights sits). But the EU, too, is not to be forgotten.  Dr Iyiola Solanke on Eutopia Law questions the legality of the government’s immigrations proposals under EU law: specifically requirements on landlords to undertake immigration status checks on tenants, including those from within the EU.  Dr Solanke also contrasts the proposals that foreign offenders be deported unless in exceptional circumstances, with the exceptional notion of deportation under EU law, with it being viewed by the CJEU as a derogation from free movement rules.

Dr Mark Elliott has also picked up the EU theme, in the context of a bill to enshrine a referendum on membership in statute.  He notes that were such a bill even to become law, there would be nothing preventing a 2015 Parliament from repealing it, aside from the political and popular mood at the time.  Parliament may not constitutionally be able to bind itself, but is it time to codify its privileges in statute?  That’s the question Nat le Roux asks at the Constitution Society.  He observes the ability of codification to empower Select Committees in dealing with recalcitrant witnesses, as well as give formality to the current “uneasy truce” between the Palace of Westminster and the courts.

The mainstay, however, of Europe-related human rights news pertains to Strasbourg; and in the fourth of a series of posts looking at the relationship between domestic law and the Convention, ObiterJ focuses specifically on mental health law.  He draws attention to BIHR’s new guide to mental health advocacy, and also provides a summary of key case law, statutes, and institutions (see also the Act for UK Rights post on this subject and Adam Wagner’s UKHRB post).

Prisoner votes – call for evidence

Speaking of Europe, the relationship between London and Strasbourg is perhaps most tense (especially if Abu Qatada is finally deported) than in the area of prisoner voting, and a new Joint Select Committee is currently calling for evidence on the draft Voting Eligibility (Prisoners) Bill.  As it stands, the proposal has three options for how the law ought to be:

1. Disqualifying prisoners sentenced to 4 years or more in prison from voting.

2. Disqualifying prisoners sentenced more than 6 months in prison from voting.

3. Disqualifying all prisoners serving custodial sentences from voting – a restatement of the existing ban.

Reform, Reform, Reform

Government proposals are often the target of scrutiny, and a number of potential reforms have come under the microscope recently, including on human rights grounds.  The first litigative challenge comes to the cut to housing benefit for those deemed to live in properties too large for their family (the ‘bedroom tax’).  This is being challenged by a number of disabled people and their families on the basis that the changes discriminate against them due to their need for more rooms to cope with their disability.

The Public Law Project has also published its draft response to the MoJ’s consultation on further legal aid reforms, focusing specifically on proposed changes to funding for judicial review.  Chief among its contentions is that the uncertainty in ascertaining the merit of claims at the outset in this area is greater than in others. Professor Richard Moorhead, meanwhile, opines that the proposal only to pay for judicial review applications if permission is granted, could “create more cost than it cuts”.  Moreover, the removal of ‘borderline cases’ and requirement that civil cases have a minimum 50% chance of success could cause firms to cut caseloads dramatically and kill off entire areas of work.

By contrast, Defence Secretary Philip Hammond has criticised the government for the amount of time spent debating same-sex marriage.  Yet if, as he suggests, this is an issue on which the government is ‘out of touch’ with the populace, of significant cause for concern is the gap between what jurors are allowed to do on the internet; and what they believe to be permissible.  Joshua Rozenberg points to research that suggests 16% of jurors wrongly believe they may not check their emails while on jury service; while 5% believe there are no restrictions at all on their internet use.

Assisted Suicide in Europe and at Home

Two important cases this week relating to the law of assisted suicide and the ‘right to die’: one at Strasbourg, and the other in the Court of Appeal.  The ECtHR litigation (Gross v Switzerland, see also Isabel McArdle’s UKHRB post) featured a Swiss claimant, who contested that the authorities’ refusal to provide a drug to end her life breached her Article 8 right to respect for private and family life.  The Court held that Swiss law in the area of assisted suicide is “not clear enough” and breached Article 8 in not providing sufficient clarity on when a lethal dose of a drug would be available on prescription.  It did not, however, adopt a position on whether the particular claimant should have been permitted a dose capable of ending her life.

Closer to home, One Crown Officer Row’s Philip Havers QC has been representing “Martin” in the domestic ‘right to die’ litigation that was linked to that of the late Tony Nicklinson, who passed away at the end of 2012.  In the conjoined appeal, the court has so far heard submissions that this is a matter for judicial enquiry, even in the face of a statutory position, and Lord Falconer’s private member’s bill on the matter.

An interesting take on this particular issue is provided by Paul Daly on the UK Constitutional Law Group Blog, taking as a starting point recent developments in Ireland and Canada.  The Irish High Court (in Fleming) has held that requiring the DPP to publish guidelines on when those assisting suicide would be prosecuted would contravene democratic principles.  By contrast, the Canadian Ménard report suggests using limits on prosecutorial guidelines essentially to permit assisted suicide in Quebec, while the practice is prohibited by federal criminal law.  Interestingly, this issue is likely to reach the Canadian Supreme Court again in the coming years.

Also in the News

  • Torture Detainees: the High Court has held that the Home Office did not follow its own policy in releasing asylum detainees who could demonstrate they had been the victims of torture abroad.
  • Conscientious Objection: the Scottish Court of Session has extended the ability to conscientiously object to participating in abortion procedures to roles in the “delegation, supervision and/or support” to other staff performing medical terminations.
  • Case Comment, Faulkner: The UKSC Blog provides guidance that will constitute part of the basis of “confident” domestic case law on the remedial jurisdiction under s. 8 of the Human Rights Act.

In the Courts

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  1. ObiterJ says:

    An excellent roundup as ever and many thanks for the link

    Making deportation / extradition difficult on human rights grounds is right. However, making it difficult to expel someone on the basis of EU free movement rules is another. Reduced to basics, the EU treaties provide for freedom of movement but it is surely intended to apply to those who genuinely wish to seek honest work and not to protect those who refuse to abide by the laws of the receiving State. I believe that the EU ought to be taking a hard look at its position in this area and this could be done as part of process of the EU’s accession to the E Conv HR.

    I wondered if your blog might have picked up on some recent statements that juries have a limited time left given modern economics. Jury trial is said to be massively more expensive than trials would be without them. (An argument about which I am far from convinced). I think that there is a ‘power game’ afoot in some quarters. The ‘power’ rests with the jury and this is a mere reflection of the fact that power, in a democracy, should rest with the people. The jury system requires the lawyers involved in a case to approach matters in a fair and objective way since, at the end of the trial, the decision rests with the jury and not with the lawyers/judge.

  2. Lofthouse Jnr. says:

    The Assisted Suicide Bill would appear to blow out life insurance payouts for widows and orphans – has anyone analyzed available UK policies in regard to this? Falconer’s bill doesn’t appear to have done so….could lead to spouses trying to block assisted suicides to safeguard children’s interests…quite a mess.

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