The Round Up: End of the Charlie Gard case, Russian Homosexuality Laws, and the Northern Ireland Abortion Case

27 June 2017 by Sarah Ewart

IN THE NEWS

The Strasbourg Court has ruled inadmissible the claims by Charlie Gard’s parents that the withdrawal of artificial ventilation from the severely ill child would breach their right to respect for family life under Article 8. Seven judges ruled that it was most likely that Charlie was “being exposed to continued pain, suffering and distress”. The parents had wanted to take him to undergo experimental treatment in the US, but the Strasbourg Court said that undergoing this treatment with “no prospects of success… would offer no benefit”.

These means that the Great Ormand Street Hospital may proceed with  the Supreme Court’s order to end the baby’s continued suffering by removing Charlie from life support.  We will post a link to the text of the decision when it becomes available; here in the meantime is the press release detailing the inadmissibility decision in the case Gard and Others v. the UK . See our most recent update here for more details and earlier posts here and here.

As the Law Gazette reports, David Lidington takes over from Liz Truss as Lord Chancellor and representative of the judiciary in the Cabinet. He is our fifth Lord Chancellor in just five years.  David Lidington has been Conservative MP for Aylesbury since 1992.  You can find his voting record here and check out this profile of his record on human rights by Rights Info.

The Independent reports that the number far right extremists reported to the government’s counter-terrorism Prevent strategists increased by 30% in the past year. Prevent has been criticised for its ineffectiveness and now for focusing too heavily on Islamist terror.  See  Liora Lazarus in the UK Constitutional Law blog on the tension between (and politicisation of) human rights and effective counter-terrorism, and Adam Wagner on how we respond to terror.

Litigation following the Grenfell Tower disaster is inevitable. Sir Keir Starmer, the former Director of Public Prosecutions (DPP), said on the Andrew Marr show that prosecutors are looking into corporate manslaughter charges. Such a charge is notoriously difficult to bring (see Solicitors’ Journal here and the CPS guidelines here). There have been other calls for charges to be brought under the common law offence of gross negligence manslaughter, especially after it was revealed that both the insulation and the tiles in the building failed multiple safety tests. But legal challenges regarding negligent maintenance are also difficult to bring due to the lack of legal aid for the claimants. We’ll keep you posted as this case develops.

It’s Refugee Week this week, so head over to Free Movement for an in-depth look at the new Home Office policy of periodically reviewing (and where possible returning) refugees who have been granted indefinite leave to remain.

IN THE COURTS

Northern Ireland Abortion Case

The Supreme Court has ruled in R (on the application of A and B) v. Department of Health [2017] UKSC 41 that the Secretary of State for Health had not acted unlawfully in refusing free abortion services in England to women travelling from Northern Ireland. The judicial review challenge was taken by a 15-year-old girl who fell pregnant as a result of sexual assault. As Rosalind English writes in our initial summary here, the case is a rich tapestry of issues from devolved government to the power of the state versus women’s rights and essential healthcare. The dissenting judgments of Baroness Hale and Lord Kerr offer some hope to campaigners, and the appellants will take their case to Strasbourg (despite the earlier case of A, B and C v Ireland, which held that Article 8 rights cannot be interpreted as providing a right to an abortion). Read Rosalind’s full analysis of the judgments here.

Client Earth

Also in the courts see our review of the third phase of Client Earth’s litigation against the government regarding air pollution, a legal saga which has been ongoing for years regarding the government’s failure to meet EU obligations regarding the Air Quality Directive. See the full story here.

Bayev and Others v Russia (application no. 67667/09)

The ECtHR has ruled that Russia’s ban on promoting homosexuality to minors constitutes an unjustified breach of Articles 10 and 14. This case is interesting to read in the light of the “Charedi transgender” case covered in our recent post, which will be considered the Court of Appeal in November.

The Bayev case involved a challenge to the Russian federal government’s ban on the ‘propaganda of homosexuality’, and particularly the ‘promoting of non-traditional sexual relationships among minors’ which, says the statute, creates ‘a distorted image of the social equivalence of traditional and non-traditional sexual relationships.’  The Constitutional Court in Russia had held that the ban was justified on the grounds of protection of public morals, particularly preventing children being lead into non-traditional sexual relationships, an argument taken up by the Russian government in Strasbourg.

The case was taken to Strasbourg by protesters against the ban. The ECtHR did not accept that public debate on LGBT issues would adversely affect ‘traditional’ families and their values, and held that such a restriction of speech was unlikely to prevent minors being ‘induced’ into same-sex relationships. Not only that, but such measures were likely to be counter-productive. No convincing evidence had been adduced to the effect that sexual orientation is susceptible to external influence. The terminology in the provision was sufficiently vague that it could cover an offence where a minor simply happened to walk by, and even statements like ‘homosexuality is not a perversion’ were not sufficiently ‘neutral’ within its remit. The Court also emphasised the positive impact of queer-oriented discourse, because openness and awareness of risks associated with any sexual activity can only be conducive to greater public safety.

Judge Dmitry Dedov dissented, mainly on the grounds that the appellants’ Article 10 rights had to be balanced against the Article 8 rights of families and the convictions of parents about how to raise their children. Under his analysis, when balancing these rights the Russian government fell within their margin of appreciation.  But his was the only voice against a majority of 6, despite the Russian government’s claim that the most Russians ‘disapprove’ of homosexuality. The majority concluded that there is a clear European consensus about the recognition of individual rights to be open about their sexual orientation, and to promote their own rights and freedoms.

The Court therefore held that the ban was discriminatory, and that the Russian government had violated Article 14 in conjunction with Article 10.

See the New York Times for more:

 By Sarah Jane Ewart