The End of DOMA, Squeezing Justice and Breaching the Editors’ Code – The Human Rights Roundup

30 June 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular  LS Lowry matchstick  panorama of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.

With the continuing progress of the Marriage (Same Sex Couples) Bill through Parliament, focus was turned this week to the same issue in the USA.  Meanwhile, it was extra-judicial scrutiny being meted upon Chris Grayling’s money-making proposals, and the Sun was censured by the PCC over an EU-ECtHR mix-up.

Equal Marriage Stateside

Big news this week on the other side of the pond, with the US Supreme Court handing down decisions in two cases, marking milestones in the campaign for equal marriage for same-sex couples. The Economist provides some useful background on exactly what was at stake in each of the cases, and what the Court decided.  See also Matthew Flinn’s superb analysis on the UKHRB here.  The BBC also observes that the Proposition 8 ruling was not split along ideological lines (it was a matter of standing), and provides a useful graphic highlighting the legality of same-sex marriage around the world.  This is a theme also picked up on by Martin Downs on the UKHRB, where he takes this opportunity to “take stock” of rights for same-sex couples in Europe and beyond.  In particular, he notes the difference between the levels of controversy surrounding same-sex marriage in France as opposed to this side of the Channel, observing that this is partly due to the legislation also permitting same-sex couple adoption; something that has been legal here since 2002.

Fiona de Londras on the Human Rights in Ireland blog looks at the impact of the SCOTUS decisions on this side of the Atlantic.  She makes the point that whilst part of the decision in Windsor is one of the federal vs states’ rights, there are also important questions of recognition, due process and equal protection.  Whilst the former category may not resonate outside the 50 states, the latter questions will.  Over on the SCOTUS Blog, Larry Tribe describes the Court’s decisions as “not at all surprising”, and leave the most contentious issues to the political process for another day.  Professor Tribe focuses upon Justice Scalia’s dissent in Windsor, in which the judge criticises the majority for claiming that their decision in no way impinges upon state-level laws prohibiting same-sex marriage.  On Scalia’s view, those laws could not be seen as coherent with the principles underlying this decision.  Professor Tribe criticises this position as a “bait-and-switch” tactic, and looks to how Justice Scalia is likely to act should a Proposition 8-type action reach the highest court again in future; this time without standing issues.

Reaction to Smith

The blogosphere this week has been reacting to the Supreme Court’s decision in Smith (see UKHRB posts here and here).  Firstly, Marko Milanovic on the Blog of the European Journal of International Law finds the judgment of particular interest for three reasons: firstly, the Supreme Court was not compelled by the ECtHR to reverse its position from Smith (No 1); instead, the Grand Chamber in Al-Skeini had overturned some of the predicates on which that decision was based, in particular its former disregard for the ‘personal model’ of jurisdiction and focus on ‘regionalism’.  Secondly, this decision may well bear on the minds on of the ECtHR judges in the upcoming decision in Pritchard; and thirdly, when it came to the Article 2 merits claim, what separated the majority from the dissentors was the view that there is some scope for judicial scrutiny in this area, notwithstanding a general reluctance to expose executive battlefield decision-making.

Over on the Oxford Human Rights Hub, Natasha Holcroft-Emmess agrees with the Supreme Court decision, viewing it as in line with a “functional” approach to jurisdiction, and contributing to the supremacy of the “rule of human rights law”. Meanwhile, for a contrary view see barrister Jon Holbrook on Spiked.

Cutting Costs

With government budgets and savings-targets being agreed, the MoJ is no exception, and Professor Roger Smith, formerly of JUSTICE, has isolated five particular consequences of the proposed cuts, in his view: firstly, we would move from a ‘judicare’ system to one of the ‘contracted public defender’; the legal profession will not longer be able to look to the Lord Chancellor for support; the new system will be extremely complex in terms of qualification for legal aid; it will render high-street practice “simply unsustainable”; yet, without the ECHR it could have been worse…  If you missed the Legal Aid Question Time event, hosted by the Bar Council, it is now viewable online here.

Aside from cutting the legal aid budget, one mooted suggestion for savings has been the privatisation of the courts’ system. The Guardian has picked up on a letter sent by the Lord Chief Justice to Chris Grayling, warning against possibly undermining the independence of the judiciary in such a way.  Joshua Rozenberg, meanwhile, contrasts this issue with that of the current review of judges’ salaries and pensions.  Whilst he admits that wide public debate on the latter issue may be counter-productive; when it comes to the potential privatisation of the courts, a broad and well-publicised debate will only foster the best possible outcome.

The criminal justice system, however, is about to receive a dose of technology in attempts to increase efficiency: by 2016 the criminal courts will be fully digital, as reported by the BBC.  The plan includes expansion of the ‘Track My Crime’ system, enabling the victims of crime to check the progress of their case online; as well as secure wi-fi in courts.

 Also in the news

• Two US bloggers, who founded the group Stop Islamization of America have been banned from entering the UK.  More than 2,000 people, however, have signed a petition calling on Theresa May to overturn their exclusion.
• Following an initial post by Adam Wagner, the PCC has reprimanded The Sun for its conflation of the EU and ECtHR – see Adam’s latest post here.
• The full right of appeal against the denial of a visit visa sponsored by a relative in the UK has been abolished.  The government is also piloting a £3,000 ‘bond’ on visitors to the UK.
• Miranda Ching picks up on the ‘murkiness’ of the CPS’ guidance on prosecuting social media crimes.  She notes that “what is considered ‘grossly offensive, indecent, obscene or false’ may be highly subjective and influenced by political pressures, as well as popular opinion and reaction to major news events.”
• Many congratulations to Lady Hale, who has now assumed the responsibilities of Deputy President of the Supreme Court, following the retirement of Lord Hope.

 In the Courts

• Amin v Director General of the Security Service (MI5) & Ors [2013] EWHC 1579 (QB) – Human Rights Act and tort damages claim for alleged complicity of British spies in Pakistani torture struck out as collateral attack on previous criminal conviction [see UKHRB post here]
• Emezie v Secretary of State for the Home Department [2013] EWCA Civ 733 – M v Croyden, not Boxall or Bahta is the current final word on JR costs… take note!
• POA and others v UK 59253/11 – Admissibility Decision [2013] ECHR 600 – Prison officers human rights claim about not being able to strike declared inadmissable by European Court of Human Rights as has already been raised as a complaint

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.

• EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts – ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm
• A Practical Introduction to Human Rights: one day training course | British Institute of Human Rights
  Birmingham (4 July 2013), London (9 July 2013)

UKHRB posts 

• Pride in London, Fierté in Paris & joy in San Francisco: taking stock of law for LGBT – June 30, 2013 by Martin Downs
• US Supreme Court opens door to marriage equality, UK coming next – June 29, 2013 by Matthew Flinn
• Civil courts not open to attempts to re-run criminal trials – June 27, 2013 by Rosalind English
• A historic leap forward for equal pay claimants? – June 27, 2013 by Lauren Godfrey
• Will Article 6 come to the rescue after the legal aid reforms? – June 26, 2013 by Guy Mansfield QC
• The good Samaritan doctor and the Human Tissue Act – June 26, 2013 by Rosalind English
• The Sun gets regulator reprimand and publishes correction for misleading on European human rights – June 26, 2013 by Adam Wagner
• Sacking GP from government drugs advisor post for ‘anti-gay’ views was lawful – June 25, 2013 by Alasdair Henderson
• A1P1 and property rights in the Supreme Court again – June 25, 2013 by David Hart QC