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 this ‘understanding 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.
- Finally, European Courts looks at this week’s cases in Strasbourg. A number were about journalism, whilst others involved war crimes, ineffective investigations and fair trials.
In the Courts
- Y, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2127 (Admin) (18 July 2013) July 19, 2013
Refusal to grant leave to remain to 21-yr-old with longstanding mental health issues breached Article 3
- New London College Ltd, R (on the application of) v Secretary of State for the Home Department [2013] UKSC 51 (17 July 2013) July 17, 2013
“Highly Trusted Status” sponsorship licence scheme for colleges aimed at controlling student immigration is lawful, rules Supreme Court
- ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844 (26 March 2013) July 16, 2013
Moses LJ overturns Upper Tribunal decision not to quash FTT decision which was strewn with factual errors. “The procedure was so flawed by which the judge reached his conclusion that… it was plainly an error of law”
- HEMSWORTH COLLETTE AND MICHAEL v. THE UNITED KINGDOM – 58559/09 – Chamber Judgment [2013] ECHR 683 (16 July 2013) July 16, 2013
UK breached its investigative obligation under Article 2 ECHR due to excessive delays in investigating ‘shoot to kill’ IRA killings by security services in 90s
- MCCAUGHEY & OTHERS v. THE UNITED KINGDOM – 43098/09 – Chamber Judgment [2013] ECHR 682 (16 July 2013) July 16, 2013
UK breached its investigative obligation under Article 2 ECHR due to excessive delays in investigating ‘shoot to kill’ IRA killings by security services in 90s
- Kapri v The Lord Advocate (representing The Government of the Republic of Albania) (Scotland) [2013] UKSC 48 (10 July 2013) July 16, 2013
Supreme Court gives guidance on application of ‘flagrant breach’ test for whether court process abroad so dysfunctional that removal to face that process would breach Article 6.
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 by BPP Law School: After the Leveson Report – where next for Press Regulation? | UK Constitutional Law Group
31 July 2013, 6pm, BPP Waterloo
- 16 July 2013 – British Institute of International and Comparative Law – Events – View Event
The Bingham Centre is delighted to welcome the DPP, Keir Starmer QC, to speak on Prosecutorial Discretion and the Rule of Law. The event will be chaired by Lady Justice Arden.
- 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
- The Law Society Public Debate Series – Does Taser use breach fundamental human rights?
24/06/2013 18:00 – 19:45
- Legal Aid Question Time, Tue 18 June 2013
Bar Council: With Lord McNally, Andy Slaughter MP, Maura McGowan QC – chaired by Joshua Rozenberg, 18:30-19:30
UKHRB posts
- Transforming Strasbourg’s A1P1 Right to Property? – July 20 2013 by David Hart
- UK Court ducks position in circumcision – July 20 2013 by Rosalind English
- Permission to amend after expiry of time limits – and an unfair hearing – July 18 2013 by David Hart
- Is complicity with the death penalty illegal? – July 17th 2013 by Dr. Bharat Malkani
- No witness immunity for the Forensic Science Service – July 15th 2013 by Rosalind English
