Media By: Conor Monighan


What is the correct standard to be applied in police misconduct cases? Plus a new inquiry launches, and cake goes to the ECtHR – the Round Up

19 August 2019 by

Conor Monighan brings us the latest updates in human rights law

cake

Credit: The Guardian

In the News:

Lawyers are seeking to refer the Ashers ‘gay cake’ case to the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.

Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve.
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Liberalising Abortion in NI, Tommy Robinson, and the lawfulness of Child Spies – the Round Up.

15 July 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

same s marriage

Credit: The Guardian

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.
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A Landmark Defamation Case and Child Spies: The Round Up

17 June 2019 by

Conor Monighan brings us the latest updates in human rights law

spy

Credit: The Guardian

In the News:

The High Court has heard how MI5, which is responsible for domestic spying operations, may have unlawfully retained the data of innocent civilians for years.

Liberty’s challenge centres on the Investigatory Powers Act 2016, which gives the security services the ability to access digital devices and electronic communications. It alleges that the system of information gathering used by the security services is illegal.

As part of a systemic judicial review, the High Court was told MI5 had realised that there were problems with their data handling in January 2016, but that the Prime Minister and Home Secretary were only informed in April. It was also alleged that MI5 has been holding sensitive data without proper safeguards. Liberty argued that the security services had submitted warrant applications which misled judges, because the agencies had incorrectly suggested sensitive data was being properly protected.

Much of the case will be heard in private over the next week.

In Other News….

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Secret Surveillance and a ‘Canadian Genocide’: the Round Up

3 June 2019 by

Conor Monighan brings us the latest updates in human rights law

LGBT

Credit: The Guardian

In the News:

The High Court has granted a without-notice injunction which bans protesters from gathering outside a primary school’s gates.

Protesters have been campaigning for weeks against Anderton Park Primary School’s decision to teach its pupils about LGBT issues. The activists argue that the children are ‘too young’ to understand the relationships. Some have also stated that it conflicts with Islamic teaching.

The Headteacher, Sarah Hewitt-Clarkson, told the media that she has received a number of threatening messages. The school had to close early for half-term due to the protests.

Birmingham City Council applied for the injunction last week on the basis that the protests were beginning to jeopardise the safety of staff, pupils and parents. The injunction will last until the 10th June.

In Other News….

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Landmark ruling for inquests and Chelsea Manning released from prison: The Round Up

13 May 2019 by

Conor Monighan brings us the latest updates in human rights law

Manning

Credit: The Guardian

In the News:

Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.

Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.

Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.

She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court.
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Court of Appeal upholds ‘acoustic shock’ and Lord Sumption’s comments on assisted suicide- the Round Up

22 April 2019 by

Conor Monighan brings us the latest updates in human rights law

L Sumption

Credit: The Guardian

In the News:

Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.

Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.

The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.

His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.

 

In Other News….

  • Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
  • Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
  • The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.

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The High Court orders a fresh inquest, dismisses a discrimination claim, and quashes a police officer’s compensation– the Round Up

18 March 2019 by

Conor Monighan brings us the latest updates in human rights law

IICSA

In the News:

The Independent Inquiry into Child Sexual Abuse (IICSA) heard evidence about Sir Cyril Smith, the former MP for Rochdale. It has been alleged that Sir Cyril Smith abused boys in the 1960s at a school and hotel. The allegations were investigated by the police, but no further action taken.

Lord Steel, the former Liberal leader, gave evidence to the Inquiry. He explained that an article in Private Eye caused him to approach Cyril Smith about the allegations. Lord Steel said that, following this conversation, he “assumed” the allegations were true.

Lord Steel explained he had decided not to act because the accusations were “nothing to do with me”. He “saw no reason to go back to something that happened during his time in Rochdale” and the events happened “before he was even a member of the Liberal Party or an MP”.

Lord Steel’s comments sparked anger and he has been suspended from his party. He has since stated that the matter was properly an issue for the police and the council, and that he was not in a position to re-open the investigation.

In Other News….

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Housing Association can discriminate on religious grounds. Plus fracking and indefinite detention: The Round Up

11 February 2019 by

Conor Monighan brings us the latest updates in human rights law

prison

Credit: the Guardian

In the News:

The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.

The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions.
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Round Up: Should short term jail sentences be abolished? Plus rulings on Universal Credit and judicial pensions.

14 January 2019 by

Conor Monighan brings us the latest updates in human rights law

In the News:

prison

Credit: The Guardian

The Government is considering whether to abolish prison sentences lasting six months of less.

Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.

In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.

The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.

The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.

In Other News….

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The Round Up: Should veganism be protected by the Equality Act?

10 December 2018 by

Conor Monighan brings us the latest updates in human rights law

Vegan.jpg

Credit: The Guardian

In the News:

This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.

Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.

Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.

The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
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The Round Up: Use of personal data, the re-detention of foreign criminals, and betting on the National Lottery

20 November 2018 by

Conor Monighan brings us the latest updates in human rights law

Max Hill

Max Hill QC. Credit: The Guardian

In the News:

Max Hill QC, the new Director of Public Prosecutions (‘DPP’), has said that rape victims’ mobile phones will no longer be seized “as a matter of course”.

His comments come in the wake of allegations that prosecutors are increasingly making demands to access victims’ personal data. The Association of Police and Crime Commissioners suggested that the CPS been pushing investigators to make more invasive searches, even if officers are satisfied that they have pursued all reasonable lines of inquiry. This may be part of an effort to improve conviction rates.

Big Brother Watch wrote to the Information Commissioner’s Office (ICO) last week arguing against this trend. The campaigning group said it was becoming ‘routine’ to download the contents of sexual offence victims’ phones, and that the information could legally be stored for 100 years. In response, the ICO is considering widening its investigation into the use of victims’ information. It also spoke out against accessing rape victims’ mobile phone data and personal records.

Max Hill QC says that he aims to boost public confidence in the CPS and would improve the disclosure of evidence in criminal trials. The organisation has been struggling under 25% budget cuts and revelations of recent disclosure failings.
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The Round Up: Saudi Arabia, durable relationships, and the Telegraph judgment

29 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Khashoggi

Credit: The Guardian

In the News:

Saudi Arabia has admitted that the Washington Post journalist Jamal Khashoggi is dead. The man was last seen entering the Saudi Arabian consulate in Istanbul.

At first Saudi Arabia refused to admit the journalist was dead, then claimed he was killed in a fist fight, before suggesting he was killed by a rogue operation. A man posing as Khashoggi left the consulate the same day and walked around the nearby area.

The country’s public prosecutor has launched an investigation. King Salman announced a restructuring of the kingdom’s intelligence services. He has also dismissed deputy intelligence chief Ahmed al Assiri and Crown Prince Mohammed bin Salman’s nearest adviser, Saud al-Qahtani. 18 other suspects have been arrested and remain under investigation. The location of the journalist’s remains is unclear.

Donald Trump called the Saudi’s response ‘credible’, and senior US officials met with the Crown Prince last week. Trump has promised a robust response, but has said he does not want to damage American jobs by cutting arms sales.

Much of the information was initially leaked by Turkey, which sees Saudi Arabia as a rival in the region. President Erdogan has claimed the murder was planned days in advance.
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Round Up- Civil Partnerships for all and the Unlawfulness of Hardial Singh.

8 October 2018 by

Conor Monighan brings us the latest updates in human rights law

Marriage-009

Credit: The Guardian

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.
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ALBA Summer Conference 2018: A Review (Part 3)

24 September 2018 by

albaConor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC

Professor Alison Young

Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.

First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.

Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.
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ALBA Summer Conference 2018: A Review (Part 2)

18 September 2018 by

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

alba

‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC

The relevance of unincorporated international law (John Larkin QC):

Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:

  1. International law is determinative if it is incorporated.
  2. It ‘may have a bearing’ on the common law.
  3. It may be relevant to the application of Human Rights, via the Human Rights Act 1998.

The HRA 1998:

The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors [2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller [2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.

However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.

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