Caesarean Escalation, Judges on Human Rights and Happy Birthday – the Human Rights Roundup

8 December 2013 by

Birthday HRRWelcome back to the UK Human Rights Roundup, your regular seasonal sack-load of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Sarina Kidd. 

This week, bloggers tried to get to the bottom of the ‘forced caesarian’ case, a Supreme Court judge weighed in on the relationship between the UK and European law, and on Tuesday it’s the 65th birthday of the Universal Declaration of Human Rights.

In the News

Human Rights Day – this Tuesday 

This Tuesday 10 December is Human Rights Day, with the Universal Declaration of Human Rights celebrating its 65th birthday.

The ‘forced caesarean section’

It’s likely that you’d have read the provocative news about a woman who was given a c-section whilst unconscious, and then had her baby put into care, first reported by the Telegraph’s Christopher Booker – his latest article is here.

Lucy Reed, of the PinkTape, examines the escalation of the story, expressing her concern that its essence ‘was not apparently based on fact at all…the crucial distinction between the justification for a medical procedure and the justification for a removal of a child into care is what has been blurred and subsequently lost in the reporting of this case’.  She has a later post updating the matter, in which 2 of the 3 relevant judgments have been made available, noting that the affair is still ongoing. She also states that although it was the media furore that led to the judgments being made available, ‘it is spurious to suggest that this sort of headline led reporting is some kind of public service.’

On a similar vein, Carl Gardner likens the escalation to ‘flat earth news’ in which ‘a story appears to be true. It is widely accepted as true. It becomes a heresy to suggest that it is not true – even if it is riddled with falsehood, distortion and propaganda’. He  then proceeds to analyse some of the agendas of the Telegraph journalist Christopher Booker and MP John Hemming, who were two of the original commentators. Both Gardner and Reed also emphasise the damage that has been caused by this reporting, unfairly smearing the social workers, NHS doctors, mentally ill people and vulnerable children. Also see Adam Wagner’s UKHRB post here.

Meanwhile, Elizabeth Prochaska at Birthrights examines the available judgments and expresses a number of concerns about the whole affair. For example, during the hearing of the judgment, the mother’s views do not seem to be considered in the court’s discussion. Also, there is no explanation in the judgment as to why the medical evidence that proposed that both mother and baby should be placed in a baby unit did not happen.

Finally, here’s a useful resource: Suesspicious Minds offers a beginner’s guide to the Court of Protection, which, as the Caesarean case demonstrates, regularly makes difficult and controversial decisions in cases involving people without mental capacity.

A gaggle of judges

To quote Mark Elliot at ‘Public Law for Everyone’, ‘lectures by senior judges on the relationship between the UK and European law are rather like the proverbial bus: you wait around for one, and then several arrive almost simultaneously.’

First up is Lord Judge, who retired last year as Lord Chief Justice. He has told the UCL Constitutional Unit that the Human Rights Act need to change to make it explicit that the British courts are not obliged to follow the rulings of Strasbourg. You can read his lecture in full here. He criticised Theresa May’s suggestion that ‘some judges choose to ignore Parliament and go on putting the law on the side of foreign criminals instead of the public’ and emphasised that a UK Court cannot ignore an Act of Parliament.

Dr Elliot analyses the speech in detail, explaining that for there to be an honest and effective debate on the issues at hand, ‘both sides must first acknowledge that, for the time being at least, European law has a constraining effect upon the United Kingdom that cannot be neutralised by reliance upon constructs of purely domestic constitution law. Only then can the appropriateness of that constraining effect be properly challenged or defended as the case may be’.

Meanwhile, Obiter J examines Lord Sumption’s lecture, ‘The Limits of Law’. Lord Sumption stated that, ‘Personally, if I may be allowed to speak as a citizen, I think that most of the values which underlie judicial decisions on human rights, both at Strasbourg and in the domestic courts of the United Kingdom, are wholly admirable. But it does not follow that I am at liberty to impose them on a majority of my fellow citizens without any democratic process’. The crux of Sumption’s argument seems to be that the current human rights protection system has had a detrimental effect on there being political solutions to rights problems. Obiter J argues against the notion that human rights should be addressed by political processes for, ‘political processes are not always minded to address matters of concern, especially where the matter affects a relatively small number of individuals.’

One can also read Lady Hale’s lecture ‘What the point in Human Rights?’ here in which she asks, ‘So what has gone wrong? Why is the [Human Rights] Act apparently so unpopular with politicians, the press and the public? Are they right?’ Hale explains that they aren’t and looks at the positive ways in which human rights law has impacted on people’s lives and buttressed against injustice. She concludes by considering what the consequences would be if the Human Rights Act were to be repealed.

And, finally, you can check out Lord Justice Laws’ Hamlyn Lecture, ‘The Common Law and Europe’ here, and Obiter J’s comments on it here.

In Other News

In the Courts

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  1. rose white says:

    British judges may try to ignore Strasbourg but they cannot ignore the UN Declaration?

  2. jonholbrook says:

    On spiked I have argued that Lord Sumption is right: legal activism devalues the demos:

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