Government Losses, HRA Repeal & Secular Courts – The Human Rights Roundup

4 November 2013 by

Iain Duncan SmithWelcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found here. You can  find previous roundups herePost by Daniel Isenberg, edited and links compiled by Adam Wagner.

Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government.  Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts.  Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.

In the News

Winning and Losing

Some important judicial review judgments being handed down this week, with both wins and losses for the government.  Our tour begins in Lewisham, where the Court of Appeal upheld the decision of the High Court that Jeremy Hunt’s attempts to close the emergency and maternity units at the hospital were ultra vires and irrational.  1COR’s Jeremy Hyam acted for Save Lewisham Hospital Campaign Ltd in the appeal.

Greater success for the government, however, as the Press Standards Board of Finance challenged the move by the Privy Council to adopt the royal charter agreed between the main three political parties.  ‘Pressbof’ contended that the process undertaken by the Privy Council was flawed and it had unfairly and unlawfully not considered the charter proposed by Pressbof.  However, permission to proceed was denied and publishers were refused a last-ditch injunction on Wednesday before the Privy Council granted the charter.

Meanwhile, the Supreme Court upheld a decision of the Court of Appeal that the government’s new ‘back to work’ schemes were unlawful, as the government had not provided a “”sufficient detailed prescribed description” of the schemes.  However, the cross-appeal also failed, which had contended that the policy amounted to forced or compulsory labour, breaching the ECHR.  The BBC correspondent’s view following the decision is that “the government was entitled to ask people to take part in the schemes and it would not have to further amend existing legislation.” Joshua Rozenberg and Nick Cohen were not impressed with Iain Duncan Smith’s DWP’s spin on the case (pictured above).

David Miranda

As the David Miranda saga continues, the parties were back in court this week, before the substantive proceedings occur in the week to come.  The claimant’s arguments relate to: use of powers for an improper purpose; incompatibility of Schedule 7 with the ECHR; and disproportionate use of Schedule 7 in this case.  In this hearing the government’s claim for PII (public interest immunity) in respect of some evidential material was granted, though cross-examination of witnesses has not been ruled out.

Family Law & Human Rights

Sir James Munby, President of the Family Division gave a speech this week on ‘Law, Morality and Religion in the Family Courts’.  The second half of this lecture is of particular interest to those in the field of human rights, examining the approach of the court to religion.  Sir James pointed out that “all [religious beliefs] are entitled to equal respect, so long as they are ‘legally and socially acceptable’ and not ‘immoral or socially obnoxious’ or ‘pernicious.’”  Moreover, he noted that there is no “bright line” test to be set at where religious belief is not “immunised” from the secular law.

In Frank Cranmer’s analysis of the speech on Law & Religion UK, he picked up on the “howls of protest from what might be termed the Religious Right”, with questions raised, such as: “What is the basis of English law if not Christian?”  In particular he picks up on Melanie Phillips’ claim on her blog that judges see their role as protecting secular beliefs, which are not – as they claim – value-neutral, but instead promote “hyper-individualism”.  Cranmer points out that calls to apply broad ‘Christian principles’ of truth, equality and peace are difficult to apply in specific cases; and a return to law based on some interpretations of traditional Christian values would involve repeal of some of the twentieth century’s most significant reforms.

Meanwhile, ObiterJ picks up on a flurry of family law cases reaching the appellate courts, and has compiled a useful primer.

Human Rights Act Repeal

It’s old news that HRA repeal is likely to form part of the Tory manifesto for the 2015 election, and Chris Grayling’s opposition to the 1998 statute “comes from his belief that it is fundamentally incompatible with Britain’s way of life, and his personal experience as Justice Secretary.”  Mr Grayling moves from general critiques (that judges have taken the ECHR to places that “the authors…would never have imagined”); to specific criticisms – on prisoner voting and whole-life tariffs.

Much debate has arisen about what the Tories might do with the human rights landscape without the HRA.  Ben Boult on Conservative Home is sympathetic to a judicial ‘strike-down’ power, however he sees the parliamentary Joint Committee on Human Rights as crucial to any proposed ‘British Bill of Rights’.  Boult suggests this would constitute a ‘Parliamentary model of rights protection’: unlike judges, committee members are elected and accountable, and this proposal “would bring with it all the benefits of a judicial “strike down power” – but without the negative aspects of that power in the form of an unaccountable and potentially ‘out-of-touch’ judge”.

Immigration News

Colin Yeo on the Free Movement blog continues his series on the new Immigration Bill with a specific focus on appeal rights.  He notes that the proposed Bill “even removes the ‘not in accordance with the law, including Immigration Rules’ ground of appeal.”  Only the more ‘modern’ forms of appeal (refugee law and human rights) will remain, and no longer the traditional immigration appeals.  However, in actual fact, he points out, “immigration appeals will essentially continue, albeit in more complex form, and that judicial reviews will considerably grow”.  He points out that overstayers as a group will actually benefit from these proposals – because as long as they have made a human rights claim; if this is turned down, it will automatically generate an appeal.

Meanwhile, Matt Evans on The Justice Gap observes that the UK and EU are “locked in dispute” over the ‘right to reside’ test, especially as the UK has not informed the Commission of the measures it intends to put in place to align the procedures with EU law.  The particular test limits benefit claims by EU citizens who are ‘habitually resident’ in the UK.  The Commission has referred the case to the ECJ and, should the UK lose, it would have to apply the ‘habitual residency’ test rather than its own ‘right to reside’.  The EU goes as far as to claim that potentially thousands of EU nationals resident in the UK have been refused benefits to which they should lawfully be entitled.

Media Reporting

Joshua Rozenberg has called on his readers to approach media reporting with a degree of scepticism.  In giving testimony before the Joint Select Committee on the Draft Prisoner Voting Bill (with our own Adam Wagner), Rozenberg gives the example of the Supreme Court decision in the “back to work” case (see above) as how complex court judgments can be presented to favour a particular agenda.  He does not exclude his own reporting from the healthy scepticism for which he calls; readers should absorb from a wide array of sources to get a sense of balance.

Simon Carne picks up on the same story, but takes a slightly tack, arguing that what is actually important in the current climate is that the scheme is set to continue, rather than whether the original conception was flawed.

Also in the News

  • Mark Elliott provides an account of the Bingham Centre’s response to the latest judicial review reform proposals.
  • Look out for the ECtHR Grand Chamber hearing on the French full face veil case on 27 November.
  • A new handbook has been produced for litigants in person.
  • The Global Justice Clinic and INTERIGHTS present evidence to the African Commission on Human and Peoples’ Rights alleging Djibouti played an active role in CIA extraordinary renditions.
  • ‘The Last Ambush’ report presents findings on mental health problems faced by soldiers returning from war.
  • Consultation is currently open on the government’s Balance of Competences Fundamental Rights Review (see UKHRB post here).

In the Courts

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.

UKHRB posts

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: