Grayling on the JR Attack, Sacked Christian Nursery Worker and Al-Sweady Inquiry – the Human Rights Roundup (BUMPER EDITION)
21 April 2014
Welcome back to the UK Human Rights Roundup, your regular Easter egg hunt 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 Celia Rooney.
Chris Grayling is on the offensive again over Judicial Review, the Home Secretary has faced a defeat over her decision to maintain a freeze on the money given to destitute asylum seekers, while in other news, the Strasbourg court rejects a challenge to a UK ban on secondary industrial action and the long-running Al-Sweady Inquiry has concluded hearing oral evidence.
In the News
Al-Sweady Inquiry closing submissions
The long-running Al-Sweady Public Inquiry has heard its closing submissions as the oral hearings drew to a close. The conclusion of the controversial Inquiry has been widely reported: see BBC, Guardian, Telegraph, The Times (£). The closing submissions can be read in full here: Counsel for the Public Interest Lawyers;(Iraqi); Counsel for the Treasury Solicitors(Military)Annex 1 Part 1, Part 2, Part 3; Counsel for the Ministry of Defence.
1 Crown Office Row barristers Neil Garnham QC, Neil Sheldon, Adam Wagner, Isabel McArdle, Alasdair Henderson, Matthew Flinn, Karwan Eskerie and Lois Williams acted for most of the military witnesses.
Christian nursery teacher claims unfair dismissal
There will no doubt be more to come on this case, which has been reported with a quite different emphasis by the Telegraph (Christian nursery worker ‘sacked after refusing to read gay stories to children‘) and The Guardian (Christian nursery worker claims unfair dismissal over dispute with gay colleague)
UK Ban on Collective Action Lawful
The European Court of Human Rights has held that UK limits on collective action are lawful and constitute a justified interference with the right to freedom of association, in the recent case of The National Union of Rail, Maritime and Transport Workers (RMT) v UK  ECHR 366 (8th April 2014) – UKHRB post here.
Although the Court ruled that Article 11 of the Convention was engaged, as secondary action did constitute trade union activity, the aim of protecting individuals not involved in any collective action was a legitimate one. The Court went on to conclude that, while the UK’s position on secondary action was somewhat anomalous in the EU, and despite criticism by the ILO, the UK’s ban was lawful and fell within its margin of appreciation.
John Hendy QC and Michael Ford QC have considered the case in more depth in a post on the Oxford Human Rights Hub Blog. They highlight that, while the Strasbourg Court has not shut the door completely on further challenges in this field, UK trade unionists will take little comfort in the judgment. Moreover, they suggest that the ‘cynical commentator’ may see this as an attempt to appease the UK, in light of its threats to withdraw from the Convention.
Theresa May Loses Fight to Freeze Support to Destitute Asylum Seekers
Last week, in the case of R (On the Application Of Refugee Action) v The Secretary of State for the Home Department  EWHC 1033 (Admin), the High Court ruled that the decision of Theresa May to maintain a freeze on the level of support given to destitute asylum seekers was irrational. The case was brought by Refugee Action, who suggested that current levels of support were leading to real hardship for asylum applicants.
Although representatives for the Home Department suggested that the evidence of this was merely anecdotal, Popplewell J said that they had failed to conduct a lawful assessment of the needs of this vulnerable group. The decision to freeze support levels had thus been based on insufficient evidence. The Independent reports that the shadow Minister for Immigration, David Hanson, has tabled a parliamentary question asking Theresa May to respond to the judgment. She is required to make a fresh decision by the 9 August 2014.
The case is examined by Colin Yeo in a post on the Free Movement Blog, here, which suggests that the judgment is a ‘damning’ one for the Home Secretary. Moreover, Yeo argues that it is valuable litigation of exactly this sort that is threatened by the cost reforms in public interest cases proposed by Chris Grayling under the Criminal Justice and Courts Bill 2014.
First Same Sex Marriages in the UK
In late March, the first same sex marriages took place in the UK, after becoming legal in England and Wales under the Marriage (Same Sex Couples) Act 2013. A similar Act was passed in Scotland, where the first ceremonies will take place in October of this year. The first ceremonies took place with broad political support, though many religious groups remain opposed. The Equality and Human Rights Commission has produced guidance on the Act, which can be accessed here.
International Court Says No to Whaling
The International Court of Justice has, this week, told Japan to suspend its whaling programme in Antarctica, after Australia raised the issue before the Court. Japan had conducted its whaling activities on the basis of scientific permits. The International Court, however, held that the programme did not constitute scientific research as defined by the rules of the International Whaling Commission. The Japanese government made it clear that, while they regret the decision, they intend to comply with it nonetheless as responsible members of the international legal community. Rosalind English has commented on the story in a post for the UK Human Rights Blog here.
Chris Grayling Takes on Judicial Review
Justice Secretary, Chris Grayling, has accused pressure groups and NGOs of exploiting the judicial review process to impede the will of Parliament. His latest salvo comes in today’s Telegraph.
In attempting to defend his proposals on the subject before the House of Lords Constitutional Committee, he suggested that such organisations pursue litigation in order to delay planning decisions, deportations and other legislation more generally. In doing so, he argues that charitable organisations have used ‘human shields’ in the courts to pursue their own aims. Grayling, who is also Lord Chancellor, cited the recent challenge by the Howard League for Penal Reform to legal aid cuts in support of his contentions.
For more information, see Angela Patrick’s latest UKHRB post, Adam Wagner on why Judicial Review is not part of a vast left wing conspiracy, this post on Legal Voice and the Guardian’s thoughts on the matter here.
In Other News
- Thorbjørn Jagland, the Secretary General of the Council of Europe, has reported that the rule of law in Europe is facing its worst crisis since the Cold War, in light of Russia’s recent annexation of Crimea. Joshua Rozenberg examines the report for the Guardian here.
- The Court of Justice has ruled that a data retention law, which required internet and telephone companies to retain the data of their users for up to two years, is unlawful. The Court did not rule out the possibility of this kind of law, but indicated that tighter guidelines were required on when authorities could access the data in order to avoid a breach of fundamental rights. More information is available here.
- The US Senate Intelligence Committee has indicated its plans to declassify and release much of its report on detention, rendition and extradition post-9/11 by the CIA. The Economist reports on this here.
- Colin Yeo, writing for the Free Movement Blog, has considered the difficulties of successfully resisting a removal from the UK on the grounds of medical treatment here. More recently, Maurice Kay LJ in the Court of Appeal has granted permission to appeal on Article 3 and 8 health cases – reasons here.
- The Court of Appeal has turned down leave to appeal the High Court decision in R (on the Application of Lumsdon and others) v the Legal Services Board EWHC 28 (Admin), which upheld the legality of the Quality Assurance Scheme for Advocates. Commenting on this development on his Lawyer Watch blog, Richard Moorhead has noted that while QASA is flawed, it is better than leaving decisions on the quality of advocates to the government or the head of the Criminal Bar Association.
- The The Law Society has produced a practice note on Sharia-compliant wills, which can be accessed here. Frank Cranmer has commented on some of the practical difficulties that nonetheless remain in this area of law on the Law and Religion blog.
- Secretary General Thorbjørn Jagland has warned of the impact on other countries of calls from within the United Kingdom to abandon the European human rights system in an interview with the Financial Times.
- Professor Simonetta Manfredi, of Oxford Brookes University, has examined what the EU has done to further the cause of women in a post on the Oxford Human Rights Hub here.
- Barristers have called off their planned walkout against legal aid cuts, after a deal was reached with the Ministry of Justice not to implement most of the proposed cuts until next summer.
- In March this year, the Supreme Court gave its judgment in Cheshire West  UKSC 19. In a post on the Oxford Human Rights Hub, Simon Burrows has considered the implications of the judgment, which has seemingly increased the pool of people who will be categorised as ‘persons deprived of their liberty’ for whom detention will require Court of Protection consent.
In the Courts
- Haroon Aswat, R (On the Application Of) v Secretary of State for Home Department  EWHC 1216 (Admin) (16 April 2014)
High Court: man suspected of training terrorists can’t be extradited to USA due to severe mental health condition
- THE NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS v. THE UNITED KINGDOM – 31045/10 – Chamber Judgment  ECHR 366 (08 April 2014)
European challenge to UK’s collective action laws fails.
Lawful for court orders protecting identity of under-18 criminal defendants to expire when they reach 18, rules High Court.
To add 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 the topics covered by this blog.
- Human Rights and Military Intervention – 30th April 2014, 6.30, Law Society
- Event: JUSTICE Student Human Rights Network – Annual Conference 2014 – 22nd March 2014
UK Human Rights Blog Posts
- Backlog, backlash and beyond: debating the long term future of human rights protection in Europe – April 14, 2014 by Alice Donald
- Passive smoking in prison not a breach of human rights – Court of Appeal – April 14, 2014 by Rosalind English
- Strategic litigation: the noble pursuit of litigation – April 15, 2014 by Polly Botsford
- Public and private law wrongs are not the same – Court of Appeal – April 15, 2014 by David Hart QC
- Article 11: Right to strike and insecure workers – April 17, 2014 by Lauren Godfrey
- Not unlawful to refuse egg freezing therapy for Crohn’s sufferer – April 18, 2014 by Rosalind English