Liberalising Abortion in NI, Tommy Robinson, and the lawfulness of Child Spies – the Round Up.
15 July 2019
Conor Monighan brings us the latest updates in human rights law
In the News:
The House of Commons has passed amendments which are likely to liberalise the law on abortion and same-sex marriages in Northern Ireland.
The amendments were added to the NI Executive Formation Bill. The first was put forward by Conor McGinn (Labour). It states that if the NI Assembly is not restored by the 21st October, the government must create secondary legislation to allow same-sex marriage in Northern Ireland. This means there will be no further debate in the House of Commons, because the government will make use of regulations. The second amendment, tabled by Stella Creasy (Labour), has a similar effect. However, both are subject to the condition that the Northern Irish Assembly can legislate to change the law.
Prior to the vote, Ms Creasy said “At this moment in time, if somebody is raped in Northern Ireland and they become pregnant and they seek a termination, they will face a longer prison sentence than their attacker”.
The Conservative leadership contenders were split on the vote. Boris Johnson stated that both subjects were devolved matters, whilst Jeremy Hunt voted for both proposals. Karen Bradley (the Northern Ireland Secretary) and Theresa May (PM) abstained.
Unusually, MPs in the Scottish National Party were given a free vote. The party ordinarily abstains from voting on devolved issues in other countries. Some have argued that the legislation will provide an incentive to politicians working to reach an agreement so that the Assembly can be restored. However, the DUP described the bill as having been “hijacked” and emphasised that Parliament was legislating on devolved matters.
The changes come in the wake of a recent Supreme Court case, in which it was held Northern Ireland’s abortion laws were incompatible with the ECHR. However, no declaration of incompatibility was made because the applicants lacked the necessary standing. Since then, a new claim had been brought by Sarah Ewart (a campaigner).
In addition, a report by the UN Committee on the Elimination of Discrimination against Women (CEDAW) made a series of recommendations to amend the law. These will now need to be implemented by the government.
More from the LSE here.
In Other News….
- The government is consulting on whether to allow heterosexual couples in England and Wales to ‘convert’ their marriages into civil partnerships. At present, the option is restricted to homosexual couples. The proposal comes after the Supreme Court case of R (on the application of Steinfeld and Keidan), in which existing law was held to be incompatible with the ECHR. A similar change is already underway in Scotland. (More from the Guardian here).
- The Legal Services Board (‘LSB’) approved an application made by the BSB which allows Chambers to publish anonymised data about members’ sexual orientation and religious beliefs. Controversially, Chambers can do so without the consent of all its members. The BSB has stated that it wishes to achieve “a consistent approach across all diversity characteristics”, because information on other protected characteristics can already be shared without members’ unanimous approval. The LSB said it hoped the statistics will help create more diverse workforces. However, the BSB has emphasised that Chambers must secure the consent of individuals who have a ‘real risk’ of being identified from the data. (More from the Law Gazette here).
- This week a commission will commence work into the ability of the criminal justice system to identify, and act upon, miscarriages of justice. An all-party parliamentary group has created the Westminster Commission on Miscarriages of Justice, with the aim of ‘investigating the ability of the criminal justice system to effectively identify, rectify and prevent miscarriages of justice’. The report will focus particularly on the role of the Criminal Cases Review Commission (“CCRC”). Concerns have been raised about the criminal process, especially in light of the 60% cut in funding suffered by the CCRC. Just 0.7% of cases received by the CCRC were referred to the Court of Appeal in 2017 – its lowest ever rate. (More from The Justice Gap here).
- Sir John Major has said that he would judicially review any attempt by the government to prorogue Parliament. The review would be to the advice given by Ministers to the Queen, rather than any action the Queen made on the basis of that advice. Sir John’s suggestion sparked a debate about the proper place of judicial review. Some argued that the challenge would ‘drag the Queen into politics’, and raised the question of whether Her Majesty could be compelled to give evidence in court. Mr Hunt has ruled out shutting down Parliament, but Mr Johnson has not. (More from the BBC here).
In the Courts:
- Just for Kids Law, R (on the application of) v Secretary of State for the Home Department: A challenge to the use of child spies failed. Just for Kids Law argued that there are inadequate safeguards governing the use of juvenile covert human intelligence sources (“JCHIS”). The High Court decided that the current scheme in place did not breach Article 8 ECHR. It is not necessary for all children to be treated as ‘vulnerable’ because the structure of the entire supervisory scheme was built on the premise that children are in a sensitive position. Neither is it a requirement that the child’s parents act as the appropriate adult, because there might be other individuals better qualified to act in the juvenile’s best interests. The court further held that it was not irrational for a distinction to be drawn between persons aged 15 or under, who must always have the safeguard of an appropriate adult at meetings with JCHIS, and individuals aged 16 or 17, who need not.
- AB (Termination of Pregnancy), Re: The Court of Appeal allowed a challenge to the High Court’s decision that it was in the best interests of a disabled woman to have an abortion. The court ruled, firstly, that the judge had erred by finding there was a real risk of the baby being removed from the mother shortly after birth, because ongoing investigations into the circumstances of the baby’s conception meant this outcome was not certain. The court also decided that the trial judge had not taken sufficient account of the mother’s wishes and feelings, given the importance placed on them by the Mental Capacity Act and the ECHR. It was particularly important to do so in this case, where the majority of the medical evidence sought to assess the lady’s likely emotional reaction to the birth or abortion.
- HM Attorney General v Yaxley-Lennon (Rev 1): Following an application by the Attorney General, the High Court found that Stephen Yaxley-Lennon (also known as Tommy Robinson) had committed contempt of court. The court found that Mr Robinson’s decision to live-stream outside Leeds Crown Court, while the jury were considering their verdict, was in breach of reporting restrictions that had been imposed. Even wrongly made court orders had to be followed. It was not necessary for the respondent to know about the order imposing reporting restrictions, because a strict duty of care is placed upon journalists. However, the High Court found Mr Robinson clearly was aware of the restrictions and chose to breach them. The court also decided that the content of Mr Robinson’s video gave rise to a substantial risk that the course of justice would be seriously impeded. The respondent had made the defendants fearful of harassment, thereby inhibiting their ability to participate in the trial. Finally, the court held that Mr Robinson interfered with the due administration of justice by confronting the defendants in an aggressive manner, and filming himself whilst doing so.
On the UKHRB
- Catriona Murdoch wrote an article entitled “The Return of Famines and the Pursuit of Accountability”, summarising a legal policy paper recently published by Global Rights Compliance (GRC).
- Martin Downs gave an insight into the history of the LGBT movement, focusing on the influence of America.
On Law Pod UK
- Listen here to Rosalind English talking to Catriona Murdoch about a new app designed to help professionals gather evidence and prosecute war crimes in Episode 87
- Gender Recognition and Human Rights: Reforms to the Gender Recognition Act 2004: Garden Court Chambers, July 18th, with the HRLA. More information here.
- Europe’s Last Executioner (exhibition): London, until the 19th July with Amnesty. More information here.
- Constitutional Law Summer School: Belfast, 7-9th August 2019 with the Attorney General for Northern Ireland’s Office. More information here.
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