R (O’Connor) v Aldershot Magistrates’ Court  EWHC 2792 (Admin)
On 20 February 2015 Matthew O’Connor, the Claimant in this judicial review and the founder of the campaign group Fathers4Justice, was due to go on trial at Aldershot Magistrates’ Court for a public order offence. He arrived at court with around ten of his supporters, but when they tried to gain entry to the court building they were prevented from doing so by HMCTS staff. Only the Claimant and his Mackenzie Friend were allowed to enter.
With the Supreme Court having ruled yesterday that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU will undoubtedly revolve around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the government’s negotiation position. This post puts forward the hypothesis that such debates may become irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable.
In R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5, the Supreme Court rejected the government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50 (see yesterday’s post on this blog which summarised the court’s judgment). Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s decision to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration.
R (Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council  EWHC 34 (Admin) (judgment awaiting publication)
There is an exceedingly long line of case law, stretching back beyond the days of the community charge (which was of course better known as the Poll Tax). In those cases, the courts have traditionally quashed custodial orders improperly imposed by magistrates for non-payment of council taxes.
Most recently, the legal charity Centre for Criminal Appeals have picked up the reins as part of their work challenging unduly harsh sentencing practices. The case of R(Woolcock & Bridgend Magistrates Court) v Cardiff Magistrates Court and Bridgend County Council, a judicial review claim, is the first of the cases supported by the Centre to reach the High Court, and concerned imprisonment of a woman who had failed to make council tax payments required of her.
In the recent case of David Parris v. Trinity College Dublin, the CJEU found that the ineligibility for a survivor’s pension of an employee’s same-sex partner, in circumstances where the 2011 recognition of their civil partnership by Irish law had come after that employee’s 60th birthday and therefore too late to trigger the pension entitlement, gave rise to neither direct nor indirect sexual orientation discrimination.
The UK Government had made written submissions in Parris, hoping for reasoning that would support its defence of an exception in the Equality Act 2010 permitting unequal survivor’s pensions for same-sex civil partners and spouses. The compatibility of the UK’s exception with EU law and the ECHR will be tested in John Walker v. Innospec Ltd, an appeal to heard by the UK Supreme Court (UKSC) on 8-9 March 2017. For a detailed analysis of the Court of Appeal’s judgment, see R. Wintemute, March 2016, 45(1) Industrial Law Journal 90-100.
Although it is suggested that the CJEU erred in finding no sexual orientation discrimination in Parris, it focussed on a rule of the Irish pension scheme that does not exist in Walker, namely that the employee’s marriage or civil partnership must take place before their 60th birthday. It is therefore suggested that Parris will not help the UK Government in Walker.
Angela Patrick of Doughty Street Chambers provides an initial reaction on the implications of the decisions in Tele Sverige/Watson for domestic surveillance and the Investigatory Powers Act 2016.
In an early holiday delivery, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the joined cases of Tele Sverige/Watson & Ors (C-203/15/C-698/15), this morning.
Hotly anticipated by surveillance and privacy lawyers, these cases consider the legality of data retention laws in Europe, following the decision in Digital Rights Ireland that the Data Retention Directive was unlawful. Broadly, the CJEU confirms that EU law precludes national legislation that prescribes the general and indiscriminate retention of data. The Court concludes that the emergency data retention legislation passed in a few days in 2014 – the Data Retention and Investigatory Powers Act 2014 – is unlawful. That legislation is, of course, due to lapse at the end of December 2016 in any event.
This morning’s decision comes just too late to have influenced the passage into law of the Investigatory Powers Act 2016 (“IPA”) – the new domestic bible on bulk surveillance, interception, communications data retention and acquisition and equipment interference – which received Royal Assent in early December. However, what the CJEU has to say about surveillance and privacy may determine whether the IPA – also known by some as the Snoopers Charter – has a long or a short shelf-life.
The powers in IPA are built on the same model as its predecessor and provides for broad powers of data retention with limited provision for safeguards of the kind that the Court considered crucial. Significant parts of that newly minted legislation lay open to challenge. Continue reading
The election of Donald Trump as the next US President has shaken our faith in democracy and is a serious blow to the cause of human rights in the US and around the world. President-elect Trump’s campaign was a repudiation of the political and social progress made under his predecessor. It was an explicit threat to those who are vulnerable – whether because of their religion, race, gender, sex, sexual orientation, or physical abilities. Trump’s election, an ‘American tragedy’, comes at the end of a year in which the values that are said to underpin civic society in the US and Europe have come under significant threat.
When President-elect Trump’s inauguration takes place early next year he will seek to set the tone in the Western hemisphere, and across the globe, for the rest of this decade. It is clear, even before we address specific policies or world-views, that we will miss the grace and poise of President Obama. These are qualities that President-elect Trump revels to reject. We are unlikely to hear an affirmation of rights such as that President Obama made with the alliterative triad of Seneca Falls, Selma, and Stonewall.
What then, for human rights, in the time of Trump? Continue reading
Oversight of the Intelligence Services is a matter of enormous public importance, as counter-terrorism powers are enhanced to combat a pernicious and persistent threat.
A recent Report by the Intelligence Services Commissioner, Sir Mark Waller, assisted by Oliver Sanders of these Chambers, dispels some misconceptions about contact between the intelligence services and Michael Adebolajo, one of 2 men convicted of murdering Fusilier Lee Rigby. It also shines a light on how HMG applies its policy on the treatment of detainees held overseas – in Adebolajo’s case, by a Kenyan partner counter-terrorism unit in 2010. Not all of the Report’s findings make comfortable reading for the Intelligence Services.
HMG’s policy was, and remains, never to assist, condone, encourage, solicit or participate in any form of mistreatment of detainees. The 2010 Consolidated Guidance to Intelligence Officers on the Detention and Interviewing of Detainees Overseas, is intended to guide UK personnel who work with overseas agencies where, by definition, they are unlikely to be in total control of the situation in which detainees are held. Continue reading