The Round-Up: Gove’s Gallop to the Commons

michael-Gove_2566694bLaura Profumo delves into the latest human rights happenings.

In the News:

In an “exclusive” last weekend, The Independent revealed that the government is planning to “fast-track” a British Bill of Rights into UK law. The report claimed a 12-week consultation will run from late this year, which will seek to clarify that the UK will not pull out of the ECHR. In an “unusual but not unique” move, a Bill will then proceed straight to the House of Commons, without a preliminary Green or White Paper. With the EU referendum due in 2017, ministers are anxious to extricate the ECHR question from that of EU membership, making the Bill law before the in/out campaigns begin. Yet the Bill’s Parliamentary passage will be far from seamless. A cabinet minister has cautioned that the short timescale is “aspirational”, as the Bill could be “really clogged up in the House of Lords”. The upper chamber, where the Conservatives fail to command a majority, hosts some “seasoned lawyers”, who are fearful of the fallout with Strasbourg. It is understood that Gove will visit Scotland before the consultation is published, to convince the SNP to back the proposal. Yet it is not yet clear whether Gove will visit Northern Ireland and Wales as well, where he must also secure support. If the Bill is to reach the statute books before the MPs’ summer recess, it will need to be propounded in the next Queen’s speech, due in May 2016.

The legal community remains polarized. Whilst those such as Martin Howe QC support a placatory Bill, mirroring ECHR language, Geoffrey Robertson QC has warned it would be “an outrage” if MPs “rushed through a new bill”. Legal blogger ObiterJ, similarly questions Parliament’s “worrying fondness” for fast-tracked legislation, which remains open to “constitutional objection” on the grounds that Parliament should rigorously consider all legislative proposals. The Independent report also seems to suggest that the Draft Bill will not be included as part of the consultation document. “Mr Gove should hold his horses”, ObiterJ advises. It remains to be seen whether Gove, formerly criticized for his rushed free schools programme, will slacken the tempo this time.

In Other News..

  •  Gove is facing mounting calls to abolish the criminal courts charge, described by many as “Ryanair justice”. The extra charges, rushed through by Grayling, require defendants pleading guilty in the magistrates’ court to pay £150, whilst those who fight a more serious case, and lose, face a bill for £1000 (or £12000 in the crown court). The effect is manifestly unjust, with many defendants choosing to plead guilty rather than run the risk of unaffordable charges. Many magistrates have already resigned over the new system, including Mr Nigel Allcoat, who was suspended for trying to pay a breadline defendant’s court charge. Last week, the House of Lords voted by a majority of 32 to boycott the extra charges. It is now believed Gove will either scrap the charges, or significantly reform them, making them both discretionary and means-tested. As the Guardian urges Gove to act immediately, before the justice committee’s report, it seems here is a case where Gove’s speed and energy is much needed.
  • Simon Binner, the businessman who has used his LinkedIn profile to announce his plan to end his life, hopes his death will invigorate efforts to change the law on assisted dying. Binner, who was diagnosed with Motor Neuron Disease earlier this year, is a member of the British Humanist Association, which is lobbying to bring another case, post-Nicklinson, to the Supreme Court. The BHA hopes another challenge in the courts might now succeed, following the promising precedent set by Canada’s Supreme Court this year, which overturned the country’s ban on doctor-assisted dying.
  • An interesting objection has been raised to a faith-based school’s admission policy. Hasmonean High School gives precedence to Orthodox Jewish children, stipulating certain tests which must first be met as part of the admission process. The complainant took issue with the criterion that a family must “observe the laws of family purity”, questioning whether it was “reasonable, procedurally fair, or objective” to ask for such information to be verified. Whilst the school maintained such a test was an apt illustration of religious observance, and by no means intrusive, the adjudicator upheld the objection. Though the criterion was optional, it was still found to be in breach of p.14 of the School Admissions Code, as it was not possible to assess objectively, inviting potential unfairness. You will find a considered commentary on the adjudication, and its UKSC symmetry, here.
  • The Supreme Court has delivered a decisive divorce ruling in Sharland. Two ex-wives, Alison Sharland and Varsha Gohil, were both granted the right to challenge their divorce settlements after the Supreme Court held that their husbands had originally misled the courts. The case indicates a hard-line approach to non-disclosure in the family courts, making it clear that dishonesty will not be tolerated. Previously, the law was uncertain as to whether incomplete disclosure was enough to set aside an order.

In the Courts..

L.M and Others v Russia:

ECtHR judgment held that the applicants’ forced return to Syria would violate ECHR Articles 2 and 3. The case concerned the impending expulsion of three men from Russia to Syria, and their immediate state of detention pending expulsion. This was the first ECHR case to directly address the issue of returns to Syria in the current crisis. The Court held that, in light of international reports of the situation in Syria, the applicants’ return would expose them to a real risk to their lives and personal security. Russia was ordered immediately to release the two applicants who had remained in detention since May 2014, in accordance with Article 5.

Bremner v Turkey:

A television broadcast showing the non-blurred image of an individual, obtained via hidden camera, amounted to a violation of his Article 8 right to privacy, ECtHR ruled last week. The case concerned the broadcasting of a TV documentary in which the applicant was described as a “foreign pedlar of religion”, engaging in covert activities in Turkey. The Court held that showing the applicant’s image without blurring it did not contribute to any debate of general interest for society, regardless of the degree of interest in religious proselytism.

Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina:

NGOs should have verified misconduct allegations about a radio editor before going to the authorities, ECtHR held last week. The case involved defamation proceedings brought against four NGOs, after a letter they had written to the local authorities complaining about a radio editor was published. ECtHR found that the national courts had ruled correctly, in concluding that the applicant NGOs had acted negligently in reporting the alleged misconduct without taking steps to substantiate its accuracy. A fair balance had been struck between the entertainment editor’s right to reputation, and the NGOs’ right to report misgivings about a public servant – no violation of Article 10 was duly found.

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