Monthly News Archives: November 2015


The Round-Up: NI Change in Abortion Laws, and the Lord’s Prayer Ban

30 November 2015 by

Photo credit: GuardianLaura Profumo considers the latest human rights headlines.

In the News

The High Court in Belfast today ruled that abortion legislation in Northern Ireland is in breach of the European Convention on Human Rights. The Northern Ireland Human Rights Commission (NIHCR) brought the case to extend abortion to cases of serious foetal malformation, rape and incest.

The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In this judicial review, it was held that the grounds for abortion should be extended, though it is still to be determined whether new legislation will be required to give effect to the ruling.

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What’s all the fuss about the Lord’s prayer? Emma-Louise Fenelon

30 November 2015 by

 

3968d1b29ab5c87f812e12ccb25b4ff3“I find your lack of faith disturbing” (Darth Vader)

Digital Cinema Media (DCM), the media agency that supplies adverts to 80% of UK cinemas caused consternation last week when it announced its refusal to show a 60-second advert by the Church of England encouraging people to pray. The ad would have been guaranteed a sizable audience had it been permitted to air as planned before the upcoming Star Wars: the Force Awakens, advance ticket sales for which have broken all known records.

DCM said the decision was based on concerns that the ad risked upsetting or offending audiences and ran contrary to their policy not to show ads that in “the reasonable opinion of DCM constitute Political or Religious Advertising.”

David Cameron, Richard Dawkins, Carrie Fisher and Stephen Fry were among the chorus of voices to lambast the decision. Jim Shannon, Democratic Unionist MP put down an early day motion for debate in the House of Commons urging for “the ban be reconsidered and overturned”. The motion is currently supported by the signatures of 14 MPs.
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The dark face of our imperial past

30 November 2015 by

malaya-007R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 – read judgment  

The Supreme Court has ruled that the United Kingdom was not obliged to hold a public inquiry into the shooting in December 1948 during the Malayan Emergency  by British troops of 24 unarmed civilians at Batang Kali. The Court held that (1) the lapse of time meant that there was no Article 2 requirement to hold an inquiry; (2) a duty to hold an inquiry could not be implied into common law under the principles of customary international law; and (3) the decision not to hold an inquiry under the Inquiries Act 2005  was not open to challenge on ordinary judicial review principles. However, the Supreme Court did hold that the deaths were within the United Kingdom’s jurisdiction for the purposes of the application of the ECHR.

The shootings had originally been described by the Army in 1948 as resulting from an attempted mass escape by ‘bandits.’ Limited contemporaneous investigations were conducted following a growing public outcry in Malaya into the deaths of the unarmed men at Batang Kali. Their approach and conclusions was summed up in a written answer to a Parliamentary Question about the incident given by the then Colonial Secretary in January 1949. This stated:

The Chinese in question were detained for interrogation under powers conferred by the Emergency Regulations. An inquiry into this incident was made by the civil authorities and, after careful consideration of the evidence and a personal visit to the place concerned, the Attorney General was satisfied that, had the Security Forces not opened fire, the suspect Chinese would have made good an attempt at escape which had been obviously pre-arranged.

After newspaper interviews in 1970 were given by some of the soldiers involved in which the shootings were described as cold blooded murder, the Metropolitan Police was ordered by the DPP to investigate the incident.  Four soldiers stated under caution that they had been ordered to shoot the men, who had not been attempting to escape, as suspected bandits or sympathisers. However, the Police inquiry was terminated by the DPP before it had been able to make any investigations in Malaysia, on the basis that it was unlikely that sufficient evidence would be obtained to support a prosecution.
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The Magna Carta, Then and Now: Public Lecture

24 November 2015 by

National Archives Displays An Original Copy Of Magna CartaIn celebration of UN Human Rights Day on 10 December, Professor David Carpenter will be giving a lecture at Queen Mary University London.

David Carpenter is a Professor of Medieval History at King’s College London and author of ‘Magna Carta’, published by Penguin Classics.

Magna Carta, forced on King John in 1215 by rebellion, is one of the most famous documents in world history. It asserts a fundamental principle: that the ruler is subject to the law. David Carpenter’s commentary draws on new discoveries to give an entirely fresh account of Magna Carta’s text, origins, survival and enforcement, showing how it quickly gained a central place in English political life.
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Prison law failing trans people: the Round-up

23 November 2015 by

 

In the news

LGBT campaigners have called for an urgent reform of the law, following the death of 21 year-old transgender woman Vicky Thompson in an all-male prison. Ms Thompson had previously said that she would take her own life if she were placed in a prison for men.

The system of locating transgender people within the prison estate has recently come into criticism after transgender woman Tara Hudson was placed at HMP Bristol, an all-male establishment. Ms Hudson spoke of being sexually harassed by other prisoners, before a petition signed by more than 150,000 people led to her eventual transfer to a women’s prison. Statistics from the US suggest that transgender women in male prisons are 13 times more likely than the general prison population to be sexually assaulted while incarcerated.

Under the current rules, in most cases prisoners must be located “according to their gender as recognised under UK law”, although the guidance allows discretion where the individual is “sufficiently advanced in the gender reassignment process.” But the case of Vicky Thompson has been said to show that “the law is simply not working. For people living for years as women to be sent to serve sentences in prisons for men is inviting disaster.”

Responding to a question on the issue, Parliamentary Under-Secretary of State for Justice, Andrew Selous has stated that the government intends to implement “revised policy guidance… in due course.”

In other news:

  • The Guardian: The Metropolitan Police has issued an unreserved apology and paid substantial compensation to women who were deceived into forming long-term intimate sexual relationships with undercover police officers. The police force acknowledged that the relationships had been “a violation of the women’s human rights, an abuse of police power and caused significant trauma.”
  • BBC: Members of the public and journalists will be permitted to attend the majority of hearings in the Court of Protection, where issues affecting sick or vulnerable people are heard. The new pilot scheme is intended to provide greater transparency, whilst safeguarding the privacy of the people involved.
  • MPs on the justice select committee have called for the scrapping of the criminal courts charge, voicing “grave misgivings” about whether it is “compatible with the principles of justice.” The charge of up to £1,200 is imposed on convicted criminals, and is not means-tested. In its report, the parliamentary committee expressed concern that the charge, which is higher for those convicted after pleading not guilty, was creating “perverse incentives” affecting defendant behaviour. The BBC reports here.
  • The Legal Voice: The Ministry of Justice has announced that the introduction of duty provider contracts will be postponed until 1 April 2016. A number of legal proceedings have been issued, challenging the legitimacy of the procurement process. The decision has been welcomed by the Bar Council, which has consistently opposed measures it claims would “damage access to justice and the provision of high quality advocacy services.”
  • BBC: A couple from north west London have been found guilty of keeping a man enslaved in their home for 24 years, in “a shocking case of modern slavery.” The couple had “total psychological control” over their victim, threatening that if he left the house he would be arrested by police as an illegal immigrant.

In the courts

The Court found that a family of asylum seekers evicted from an accommodation centre had been exposed to degrading treatment, in violation of their rights under article 3 ECHR. The family had been left in conditions of extreme poverty, without basic means of subsistence for a period of four weeks. The Belgian authorities had not paid due consideration to the vulnerability of the applicants, who had small children including a seriously disabled daughter.

UK HRB posts

Best interests, hard choices: The Baby C case – Leanne Woods

Hannah Lynes

Events

If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.

Best interests, hard choices: The Baby C case

19 November 2015 by

Royal courtsJudgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian) [2015] EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents.
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The Round up: The threat to Schengen and the end of Fast Track Detention

16 November 2015 by

uk-surveillance-lawCharlotte Bellamy brings you the latest human rights news

 

In the News

The Home Office has confirmed that it is rejecting the call of Lord Carlile, the UK Government’s former independent reviewer of terror legislation, to rush the government’s internet surveillance bill through Parliament following the devastating attacks in Paris carried out by IS on Friday, Andrew Sparrow reports [at 12.18].

In Lord Carlile’s view the bill could pass through Parliament in the next three to four weeks, and the “necessary powers need to be on the statute book as quickly as that”. Though the draft bill was published on 4 November, it has not yet been scrutinised by the intended joint committee of both houses of Parliament. Despite Lord Carlile’s belief that “we don’t have time to wait” and the content of the draft bill is “for the most part perfectly reasonable”, the Home Office appears to be sticking to their original timetable that the final version be published in Spring next year, having had due regard to pre-legislative scrutiny, with a view to it becoming law before the end of 2016.
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Don’t Fast-Track the Investigatory Powers Bill: A reply to Lord Carlile – Natasha Simonsen and Cian Murphy

16 November 2015 by


5295Lord Carlile QC, former Independent Reviewer of Terrorism Legislation, has said that in the aftermath of the Paris attacks last weekend, Parliament should fast-track the Investigatory Powers Bill into law. Given his extensive experience in the field, Lord Carlile’s views should not be taken lightly. But Lord Carlile is wrong. To fast-track the Investigatory Powers Bill is undesirable and unnecessary. It would also end a crucial public conversation in a wrong-headed paroxysm of governmental action.

An Undesirable Response

Fast-track national security law is undesirable for (at least) two reasons. First, legislatures tend not to function well in the aftermath of any emergency. If they legislate immediately, the result is often not just overreach, but legislation that is bad in technical terms. Second, these general concerns are of especial significance in this field of law, because existing flaws in our investigatory powers law are a result of failures of scrutiny in the past.
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Gamekeeper’s environmental Aarhus claim to shoot buzzards?

14 November 2015 by

Buteo_buteo_-Netherlands-8McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant). 

This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.

As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domestic challenge on grounds of irrationality. I deal with that point first.

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Buzzards should not be protected any more than herring gulls and cormorants: High Court

14 November 2015 by

buzzard06McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.

This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.

At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. 
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Adoptions from Abroad: Article 8 Fails to Assist

12 November 2015 by

AdoptionsSM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109

A child (SM) who was adopted in Algeria by a French couple living in the UK was refused an application for a right of entry as a family member. Having been overturned in the Upper Tribunal, the Entry Clearance Officer (ECO) successfully appealed to the Court of Appeal. SM was not, the court held, a family member of Mr M. A keen human rights observer might think this was an apparent infringement of article 8 ECHR (the right to family life).
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Event: The Future of Human Rights Protection in the UK – Tuesday 24 November 2015

11 November 2015 by

eustrainedI am co-organising an event to mark the launch of a fascinating new book, The UK and European Human Rights: A Strained Relationship? Edited by KS Ziegler, E Wicks and L Hodson. It will feature a talk by Dominic Grieve QC MP, the former Attorney General, on “The Future of Human Rights Protection in the UK: What Do We Know About the Government’s Proposals”.
 
The launch is brought to you by the University of Leicester, in conjunction with RightsInfo, and kindly hosted by Reed smith.
Date: Tuesday 24 November
Time: 4.30-7pm
Venue: Reed Smith, Broadgate Tower, 20 Primrose St, London EC2A 2RS.
Please register with Teresa.Rowe@leicester.ac.uk if you would like to attend.
The event will begin at 4:30pm, followed by a drinks reception. Doors will open at 4:15pm. The venue is on the 33th floor of Broadgate Tower, and security passes will need to be issued, so please allow around 10 minutes of time upon arrival.

The Round-Up: Plaudits for Gove, and the Constitutional Convolutions of the Ministerial Code.

9 November 2015 by

michael-Gove_2566694bLaura Profumo serves us the latest human rights happenings.

In the News:

At the Howard League for Penal Reform AGM last week, Michael Gove held his own when challenged about criminal justice reform. Despite his Making Prisons Work speech in July, and his successful overturning of his predecessor’s prison book ban, Gove has remained relatively reticent on his plans for the criminal justice system. Speaking for some 30 minutes, Gove addressed the “need to move away from the sterile debate of ‘lock people up or let them out’”, and summon a “new era of talking about crime and punishment”. His audience, many still bristling from Grayling’s stringency in office, were won over by the Lord Chancellor’s more peaceable approach to penal reform. In addition to emphasising the need for a more sensitive sentencing framework, Gove urged for the causes of criminality to be tackled, including the “moral absence” experienced by many offenders growing up in care. In contrast to Grayling’s perceived complacency over prison conditions, Gove recognised the current “crisis”, pledging his commitment to his “new for old” prisons policy – replacing ineffective Victorian prisons with functional new ones – as well as to improving the autonomy of prison governors. The Lord Chancellor also proposed the use of more advanced technology in prisons, in order to improve the safety of staff and inmates, and to meet the particular educational needs of prisoners with learning difficulties. The conference ended on an especially poignant note, with Gove expressing his admiration for social workers – words which left Frances Crook, Chief Executive of the Howard League “blown away”.

It remains to be seen whether the Autumn Statement, unveiled later this month, will affirm Gove’s ambitious plans. Yet his moral framework for policy choices bodes well, informing the ongoing debate on the prison system with a quieter rhetoric of hope and realism.
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Suing Facebook is no easy matter

9 November 2015 by

facebook_logoRichardson v Facebook [2015] EWHC 3154 (2 November 2015) – read judgment

An action in defamation and under the right to privacy against Facebook has been dismissed in the High Court. The Facebook entity named as defendant did not “control” the publication so as to allow liability; and even if it did, no claim under the Human Rights Act could lie against FB as it could not be described as any sort of a public authority for the purposes of Section 6 of the Act.

The claimant, acting as a litigant in person, sought damages in respect of the publication in 2013 and 2014 of a Facebook profile and a posting on the Google Blogger service. The Profile and the Blogpost each purported to have been created by the claimant, but she complained that each was a fake, created by an impostor. She claimed that each was defamatory of her, and infringed her right to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR).
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From England (to Northern Ireland) with love

8 November 2015 by

northern-ireland-flagThe High Court in Belfast will sit on Monday 9 and 10th November to hear a challenge by a same sex couple now living in Northern Ireland who seek recognition of their English marriage. The current legal dispensation in the Province is that an English same sex marriage is recognised as a civil partnership in Northern Ireland.

The Petition is resisted by the Attorney General and government of Northern Ireland and the (UK) Government Equalities Office (which reports to Nicky Morgan, the Minister for Women and Equalities). It is anticipated that Judgment will be reserved.
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