Round-Up: Civil Partnerships for all and the Unlawfulness of Hardial Singh.
8 October 2018
Conor Monighan brings us the latest updates in human rights law
In the News:
The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.
Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.
Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.
The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced. The appellants, Ms Steinfeld and Mr Keidan, had campaigned on the issue for four years. The pair described civil partnership as a “modern, symmetrical institution” which was free of the historical connotations of marriage.
It seems likely that change may follow in Scotland. There, the Scottish government has launched a consultation on whether heterosexual couples ought to be able to enter into civil partnerships.
In Other News….
- The government is reviewing food labelling laws in light of an inquest into the death of Natasha Ednan-Laperouse, who died following an allergic reaction to a sandwich bought from Pret a Manger. The coroner found that Ms. Ednan-Laperouse had been “reassured” by the absence of allergen warnings on the packaging. However, the product actually contained sesame. This caused fatal cardiac arrest, despite the use of two Epi-Pens. Pret have stated it is “deeply sorry for Natasha’s death”. It has since emerged that Pret is investigating the death of another customer who also suffered an allergic reaction. This individual died in 2017 because a product contained dairy. Pret had apparently been told by a supplier that the ingredient was dairy-free. The Prime Minister has called for changes to the law. At present, food which is made on-site does not have to be labelled with allergen information. (More from the BBC here and here).
- For the first time in its history, the UK Supreme Court sat with a majority female bench. Following the swearing in of Lady Arden last week, her Ladyship sat with Lady Hale, Lady Black, Lord Carnwarth and Lord Lloyd-Jones. The case concerned a child with Asperger’s Syndrome and learning difficulties. (More from the Telegraph here).
In the Courts:
- Hemmati & Ors, R (on the application of) v The Secretary of State for the Home Department: A majority in the Court of Appeal held that the detention of five immigrants prior to their possible removal to other EU member states was unlawful. This is because neither the Secretary of State’s policy in relation to detention pending removal, or the Hardial Singh principles, met the requirements outlined in art.2(n) and art.28 Regulation 604/2013 (commonly known as the ‘Dublin III regulations’). The Guidance failed to contain a reference to proportionality and did not refer to the requirement that there be a “significant risk of absconding” before an individual could be detained . Hardial Singh, meanwhile, did not specify the criteria for deprivation of liberty with sufficient clarity or predictability . The Court also ruled that Factortame, which provides for damages where there has been a “sufficiently serious” breach of EU law, did not apply. This is because the right to liberty is not a concept found only in EU law . Rather, a remedy was available under the common law either by an action for damages or habeas corpus [190, 194].
- Pathan & Anor v Secretary of State for the Home Department: The appellants argued that they were entitled to be informed of the Secretary of State’s decision to revoke their immigration sponsors’ license. They also contended that they ought to have been given a reasonable opportunity to re-arrange their affairs . The Court of Appeal determined that the appellant’s complaint constituted a challenge to the substantive fairness of the Secretary of State’s process, rather than a being a concern about procedural fairness . Given that the Secretary of State’s actions were not irrational, the Secretary of State was not obliged to inform the appellants that their sponsors’ license had been revoked, or to give them an opportunity to find an alternative sponsor. The Court further held that the Upper Tribunal had not make a mistake in law by considering the logistical difficulties which the Secretary of State would face by trying to do what the appellants proposed . Finally, the Upper Tribunal had not erred by assuming the issue was whether the Secretary of State’s decision was a rational one, as opposed to whether it was procedurally fair . Appeals dismissed.
- T & Ors, R (on the application of) v The Secretary of State for Education: The case concerned regulations which offer an additional 15 hours a week of free childcare for children of working parent The claimants argued that the regulations breach Article 14 (read with Article 8) of the ECHR . In particular, they suggested that the regulations treat working families differently from those in which one parent is working, or those in which a lone parent has a child but cannot work. The High Court held that although there is a differential treatment within the meaning of Article 14, the variance is justified. This is because it pursues a legitimate aim, namely incentivising and facilitating parents to undertake paid work where they might otherwise be unable to do so [50, 55]. This aim is contained within the Childcare Act 2016 itself and is confirmed by ministerial statements made when the Act was in the form of a Bill [51, 52]. The regulations are rationally connected to that aim, and are not manifestly without reasonable foundation . Claim for judicial review dismissed.
On the UKHRB
- Rosalind English has written an report on Help Refugees Ltd, R (on the application of) v Secretary of State for the Home Secretary , a judicial review of the Secretary of State’s process for relocating unaccompanied asylum-seeking children.
- David Hart QC explained Bayer Plc v NHS Darlington Clinical Commissioning Groups (CCG) and others, a judicial review of NHS drug policy.
- Darragh Coffey posted about Coroner for the Birmingham Inquests v Hambleton & Ors, where it was held a coroner was not required to investigate the identity of the Birmingham bombers.
- A number of new podcasts have been released on LawPod, looking at: the influence of international law on individual rights after Brexit; the new offence of coercive and controlling behaviour in family proceedings; and a recent CJEU ruling on genetically modified organisms.
- Brexit: Recovery of Sovereignty or Loss of Rights (Gresham College), 6pm on 9th October, at the Museum of London. More information here.
- Women in Prison: more troubled than troublesome (LSE), 6:30pm on 9th October, at the LSE. More here.
- Trafficking: A Development Approach (UCL Laws), 6pm on 11th October, at Gideon Schreier LT. More here.
- Statutory Interpretation in a Post-Brexit UK (Institute of Advanced Legal Studies), 6pm on 15th More here.
- The Origins and Endings of Britain and the EU? (Being Human festival), 1pm on 15th November, at LSE Library Gallery. More here.
- The Beginning of the End for Inequality (Being Human), 3pm on 21st November, at Senate House Library. More here.
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