Monthly News Archives: January 2015


Dogfight continues: Strasbourg not happy with EU Court on accession to ECHR

30 January 2015 by David Hart QC

spielmannUnsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.

An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.

Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.

Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.

In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.

But Spielmann did not leave it at that, as we shall see.

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Human rights: a reality check

29 January 2015 by Rosalind English

919PxBmnG1LMost law undergraduates are familiar with Jeremy Bentham’s dismissal of natural rights as “nonsense on stilts”.  This is a slight misrepresentation of what he said, which was that “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts“. But let’s take the stilts away and consider rights in their ordinary sense. They furnish not only arguments before courts, but reasons for going to war and toppling whole regimes. As Israeli historian Yuval Noah Harari points out in his recent book:

No one was lying when, in 2011, the UN demanded that the Libyan government respect the human rights of its citizens, even though the UN, Libya, and human rights are all figments of our fertile imaginations.

So, might the author have added, are “citizens”, since in a reality without cities and states, it is a non-sequitur to talk of citizens.
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What price liberty? Damages, DOLS and a cat named Fluffy

29 January 2015 by Richard Mumford

Animals___Cats_____Fluffy_cat_showed_language_092535_On 7 January 2015 District Judge Mort of the Court of Protection approved a £60,000 settlement agreement reached between Essex County Council and Mr P ([2015] EWCOP 1). For a discussion of the case generally see Rosalind English’s post here.

With a significant backlog of care home cases in the Court of Protection, P’s case runs the risk of becoming something of a precedent on the question of damages for unlawful detention. However, as far as calculation of damages goes, it is light on analysis of principle. This post seeks to explore whether the considerable case law that has developed on damages for false imprisonment in other situations may help illuminate what this type of case is worth.
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Catch-33: Stringent documentary requirements upheld for legal aid in domestic violence cases- Vanessa Long and Adam Smith

28 January 2015 by Guest Contributor

R (on the application of Rights of Women) v Secretary of State for Justice [2015] EWHC 35 (Admin) – read judgment

legal-aidNeil Sheldon and Alasdair Henderson (instructed by The Treasury Solicitor) acted for the Defendant in this case. They have nothing to do with the writing of this post.

The campaign group Rights of Women has been unsuccessful in its judicial review of Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended) which sets out the list of documents which will be accepted as evidence that a legal aid applicant has suffered or is at risk of suffering domestic violence. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) purports to retain legal aid for victims of domestic violence. However, such funding is only available where at least one of the documents listed in Regulation 33 is submitted to the Legal Aid Agency.
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Acquitted defendants costs regime not incompatible with ECHR

28 January 2015 by David Hart QC

448bbd010e93bd0d21e13a354a3cd82bR (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment  here

The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR. 

Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.

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Introducing… the Human Rights Information Project

27 January 2015 by Adam Wagner

PrintSome exciting news.

I have a new project. The aim is to change the face of human rights. 

As readers of this blog will know, I often complain about bad human rights journalism. But inadequate reporting is a symptom of a deeper problem: poor public understanding of human rights.

It is time to do something about it. Introducing the Human Rights Information Project (HRIP).

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TTIP – more “foreign” judges criticising “our” laws?

23 January 2015 by David Hart QC

ttip-eu-komission-infografiken_englisch_722px_5_0Last week, on 15 January 2015, TTIP was debated in the House of Commons – see here. It is important for us all, but why?

TTIP stands for the Transatlantic Trade and Investment Partnership, a proposed trade agreement between the US, the EU, and various members of the EU including the UK. A sober account of its history and scope was produced for the HoC debate (here), and a rather less polite view is here from George Monbiot. 

Now, TTIP contains the usual things which one might expect to see in a trade agreement, such as the reduction or removal of tariffs between the respective trading blocs. And it comes with the usual accompanying material suggesting that all parties will benefit massively from the deal to the tune of billions of euros.

So what is there not to like?

Well, one part of the concern is that it will confer on investors (think multi-nationals) the right to sue governments for regulatory regimes causing loss of profits to those investors. This ability to sue is known as Investor-State Dispute Settlement or ISDS. And the suing does not happen in domestic courts, but in a special international law tribunal consisting of corporate lawyers drawn from the world over. I shall give some examples below of the sort of litigation engendered in the past by ISDS, so you can assess what this means in practice.

TTIP with ISDS is being enthusiastically backed by the present Government – not hitherto a fan of foreign judges taking charge of how our laws comply with external standards.

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The Changing Face of the European Court of Human Rights: Public Lecture by Judge Paul Mahoney

23 January 2015 by Rosalind English

Paul Mahoney European Court of Human rightsThursday 5 February 2015 marks the 800th anniversary of Magna Carta as well as the 50th anniversary of the School of Law at Queen Mary University of London. To commemorate both of these milestones, the Human Rights Collegium at Queen Mary University of London will be hosting this special event.

Paul Mahoney has been the UK judge on the European Court of Human Rights (Strasbourg) since November 2012. Before this, he spent the greater part of his career in the Registry of the Strasbourg Court, beginning as a case-lawyer in 1974 working on the case of Golder v. United Kingdom and ending as Registrar of the Court from 2001-05, with a three-year break in the 1990s as Head of Personnel of the Council of Europe (Strasbourg).

This event will be chaired by Professor Geraldine Van Bueren QC, and Lady Justice Arden will deliver the response.

The lecture will take place between 18.30 – 20.30 on Thursday 5 February at the Arts 2 Lecture Theatre, Queen Mary University of London, Mile End Road, London E1 4NS.

Book your tickets here.

HRC-ECtHR flyer

Nonagenarian unlawfully detained in care home for nearly two years

22 January 2015 by Rosalind English

UnknownEssex County Council v RF and Others (deprivation of liberty and damages) [2015] EWCOP 1 – read judgment

The Court of Protection has castigated the actions of a County Council in depriving an old person of his liberty and dignity in their overreaction to reports that he might be subjected to financial exploitation. This, said the judge, amounted to punishing the victim for the acts of the perpetrators.

Factual background

The facts of this case can be summarised very shortly. P, a 91 year old gentleman, is a retired civil servant and WWII veteran, and until February 2013, has lived in his own home for fifty years. He has been alone with his companion cat since the death of his sister in 1998. He is described as being a very generous man ready to help others financially if he believed they needed it, as well as making donations to various charities.
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BBC News on anti-terrorism law and human rights

19 January 2015 by Adam Wagner

I took part in a debate on the BBC World News today on some of the anti-terrorism law proposals and the impact on human rights. We only covered one aspect of the raft of anti-terrorism laws which are currently making their way through Parliament – see Angela Patrick’s detailed post from last week, which is highly recommended.

You can watch the five-minute debate below.

Grime Rap ‘Gangbo’ appeal fails in High Court – Diarmuid Laffan

19 January 2015 by Guest Contributor

Photo credit: guardian.co.uk

Photo credit: guardian.co.uk

Chief Constable of Greater Manchester v Calder [2015] EWHC B11 – Read judgment

Adam Wagner represented Scott Calder in this case. He is not the writer of this post.

The Greater Manchester Police (‘GMP’) have been unsuccessful in an attempt to obtain an Injunction to Prevent Gang-Related Violence (‘IPGV’ or ‘Gangbo‘) against Scott Calder. The application was based on police intelligence and the lyrics of Mr Calder’s YouTube Grime Rap videos. On 14 January 2015, Mr Justice Blake dismissed the GMP’s appeal to the High Court, and in doing so laid out guidance on the purpose and ambit of the IPGV legislation, which is currently being substantially amended by Parliament. 

The below is based on the Judge’s ex tempore judgment (i.e. given at the hearing). We will post the full judgment when it is available.

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Male circumcision can be part of “reasonable parenting”, but no form of FGM is acceptable – Family Court

18 January 2015 by Rosalind English

female-genital-mutilation-fgmB and G (Children) (No.2) [2015] EWFC 3 – read judgment

Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.

This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.

These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings.
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A worrying new anti-terror law is sneaking through Parliament – Angela Patrick

9 January 2015 by Guest Contributor

westminsterAs the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.

This blog has already covered the reaction to the shootings in Paris in some detail.   The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and to criticise, without fear of oppression or violence.   It is against this backdrop that we might remember that UK Ministers are already in the process of asking Westminster to expand our already broad framework of counter-terrorism legislation.

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Paris attacks show need to scrap Human Rights Act, says Tory MP with no understanding of the Human Rights Act

8 January 2015 by Adam Wagner

Screen Shot 2015-01-08 at 15.38.28I will keep this short. David Davies MP (not David Davis MP) has posted on his official blog that the Paris attacks show that the Human Rights Act should be repealed. His reasoning is spurious. He does not understand the law. He misrepresents the Human Rights Act. I will explain why below. But first, here is his post in full:
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We are not all Charlie Hebdo, but we are all afraid

8 January 2015 by Adam Wagner

B6yHQVaCAAAsDNWLast night I tweeted that none of the UK newspapers has dared to show a single cartoon from the Charlie Hebdo satirical magazine on today’s front pages. This has been retweeted over 1,500 times and counting. For the Twitter-unitiated, that is a lot. My tweet hit a nerve and I want to explain why I think that is.

The Charlie Hebdo massacre was, for me, even more affecting that the usual indiscriminate Islamist terror attacks. The gunmen targeted political satirists and cartoonists – they killed the clowns. At base it was, as has been said a million times already, an attack on freedom.

Charlie Hebdo is a left-wing satirical magazine. Safe to say it is anti-religious, amongst other things. It has printed many cartoons of religious leaders including of Mohammed. The magazine’s offices were firebombed in 2011 after it changed its title to Charia Hebdo (a play on Sharia, the Islamic system of law). Its staff were under constant threat but remained unbowed.

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