Putting a ring on it, Constitutional Carnage and Court Transparency – The Human Rights Roundup

23 July 2013 by

Screen Shot 2013-07-23 at 08.21.56Welcome back to the UK Human Rights Roundup, your regular summer thunderstorm 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 Sarina Kidd.

This week, the government’s controversial legislation on same sex marriage received Royal Assent. And, as we welcome a new royal baby, less glamorous facets of the UK’s constitutional arrangements have been in the news.

In the News

Constitutional Travails

Earlier this month, the Lord Chancellor and Justice Secretary, Chris Grayling, implied to the Justice Select Committee that ‘retaining’ judicial review is a matter for the Government and Parliament. Mark Elliot notes that thisunderstanding of the UK’s constitutional arrangements is premised upon an unsubtle notion of parliamentary sovereignty’ and that judicial review is part of the constitutional deal. It does seem, however, that the government is not necessarily in agreement with this notion that the courts must hold the executive to account, what with the December 2012 consultation paper on the restriction of access to judicial review coupled with legal aid proposals.

Meanwhile, over at the excellent UK Constitutional Law Group blog, Scott Stephenson looks at two other recent pieces of constitutional reform that have returned to the political agenda. The first involves recent statements by senior members of the Conservative Party suggesting key changes such as repeal of the Human Rights Act and withdrawal from the European Convention on Human Rights. The other suggested reform is the private Member’s Bill that would provide for a referendum on whether the UK should remain a member of the EU. Stephenson looks at whether the age of the referendum should be viewed as a welcome development.

Continuing the European theme, MPs have backed government plans to ‘opt out’ of all European Union police and criminal justice measures, with the prime minister ‘wanting to jettison all existing rules and then negotiate to re-adopt the ones he feels are in the national interest’ – see our previous coverage. Labour shadow Home Office minister Chris Bryant states that there are ‘genuine risks’ from the opt-outs as there is no guarantee that the UK can opt back in again.

Same Sex Marriage Success

On Wednesday, the government’s  legislation on same sex marriage received Royal Assent, with the first marriages expected to occur by summer next year.  Under the Marriage (Same Sex Couples) Act, religious organisations will have to ‘opt in’ to offering weddings, although the Church of England and Church in Wales are not allowed to do so. The Equalities Minister Maria Miller states that this passing of the bill affirms that ‘respect for each and every person is paramount, regardless of age, religion, gender, ethnicity or sexuality’.

Transparency in the courts

With Munby LJ having been appointed the new President of the Family Division and the Court of Protection, changes are afoot with regard to transparency in the courts. Lucy Series, at ‘The Small Places’ discusses how judgments ending up in the public domain do not always represent the typical work of the Court and ‘you can even end up with the indefensible situation of lawyers being able to cite cases in court which aren’t even in the public domain’. However, following a number of high profile newspaper campaigns, there are new plans to make the family courts more transparent and Lord Justice  Munby has published draft guidance on transparency in the courts (found here). Series examines some of the proposed changes such as the discussion on when the lifting of anonymity would be appropriate and the publication of judgements

 Also in the news

  • Marianne Franklin at the Guardian looks at human rights on the internet, explaining that whilst concerns on the subject are not new, the Prism scandal highlights the need for more vigilance and that human rights are ‘neither self-explanatory nor adequately protected’.  People, companies and governments continue to challenge legal frameworks and attitudes via misuse of the internet.
  • A handout is available from Adam Wagner and Alasdair Henderson’s talk, titled ‘1COR Breakfast Briefing Religion and Article 9’.
  • Sports law bulletin looks at the dispute between Newcastle United and their player, Cisse, who is unwilling to wear the team strip which features Newcastle’s new sponsor, Wonga, a pay-day loan company. Many Muslims are prohibited, under the religion, from promoting and benefiting from the charging of interest on loans

Case Comments

  • Two blogs examine the case of SS (Malaysia) v Secretary of State for the Home Department 2013 in which a Christian mother fled with her child from Malaysia after fearing that the father would bring the child up as Muslim, after converting to Islam. The Court of Appeal rejected the argument that it was a flagrant denial of the right to religion to be denied the right to bring one’s child up in one’s own religion, and focused instead on the benefits of the child being brought up in his home country by both parents. The further issue of male circumcision was avoided. Frank Cranmer at Law and Religion UK notes that it is surprising that Baroness Butler-Sloss’s dictum in Re J (Child’s Religious Upbringing and Circumcision [2000] was not referred to in which she stated that circumcision except for medical reasons ‘…should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child’. See the UKHRB post on the case here.
  • Free Movement blog discusses the recent case of Kapri v the Lord Advocate (representing the Government of the Republic of Albania) in which the Supreme Court gave guidance on the application of the ‘flagrant breach’ test for determining ‘whether a court process abroad is so dysfunctional that removal to face that process would itself amount to a breach of the Article 6 right to a fair trial’.
  • Obiter J looks at the case Mengesha v Metropolitan Police Commissioner [2013] in which the court considered whether the Police can lawfully require ‘kettled’ individuals to give their details or be videoed before being allowed to leave. The court determined here that obtainment of the video was a breach of Article 8 and could not be retained.
  • Via YouTube, Nicola Padfield, a reader in Criminal and Penal Justice at the University of Cambridge, discusses the European Court of Human Rights case, Vinter v UK. The case revolves around the UK’s right to sentence a prisoner to a life sentence without the chance of review.

In the Courts

Upcoming Events

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UKHRB posts 

2 comments


  1. forcedadoption says:

    Judges will still (as they do now) find “compelling reasons”not to publish dodgy judgements that might engender controversy.Parents whose children have been taken will still be prevented from identifying themselves and their problem to the media.
    25,000+ families in the UK are destroyed every year by UK secret family courts and the equally secret Court of Protection.What is a democracy? It is surely a country allowing the right of its citizens to protest publicly if they feel oppressed by the State; Elections are no guarantee. Hitler was legally elected, but was revealed as a dictator by suppressing any form of open dissent or protest. In the UK now secret family courts take newborn babies from their mothers for “risk of emotional abuse”, give them for adoption to strangers, and JAIL any parent going to the media to protest! Similarly elderly folk are snatched from caring relatives by the court of so called “Protection”, and put into expensive private nursing homes, their bank accounts are then looted and houses sold (ejecting their relatives) to pay the fees! If relatives protest to the media they too are JAILED! The democratic right of public protest to the media should be restored to victims of UK secret courts NOW.

    1. John Allman says:

      @ forced adoption

      I know a three year old child who already has a social worker working flat out to ensure that he never sees his father again, apparently for no better reason than that the “homophobic” father concerned, who has over a hundred members of the Lords and the Commons following his blog, blogged his child-oriented argument against same sex marriage a few weeks before the social worker pounced, with an agenda she has openly admitted.

      For legal reasons, I cannot tell you the names of the bereaved father concerned, or his much-loved and badly missed three year-old son, whom he hasn’t seen for almost four months, and whom he has realised that he may never, ever see again, in this life. However, if you search the web for the phrase “gagged dad” (in quotes) you will be able to read the story if this anonymous victim.

      I suggest you follow the blog to which that search will lead you, and email its publisher. The UK’s ultra-modern Kristallnacht-lite is already upon us, God help us. “They” have been reading the graffiti we have been writing on our prison cell walls. The Thought Police have already established their police state. Taking pot luck (on getting a judge who isn’t in on the conspiracy), when applying for judicial review, is all that is left, but not for much longer, the way things are going.

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