By: Guest Contributor
5 October 2016 by Guest Contributor
1
I have so many rights I am thinking of flogging some off on eBay. Though I have the right not to do so.
2
Stop telling me whatever it is you may be telling me. I have a right to tell you not to tell me.
3
I have the right and you have the right. What we have rights to may be different but let’s pool our rights and make one big right.
4
My right to have rights is being threatened by people who claim they have the right to other rights. Other people are bastards.
5
My rights are constantly threatened by people claiming to have rights. They have no right to such rights.
6
I have the right to stamp my foot. If I am not granted the right to stamp my foot I will stamp my foot. That is my right / my foot.
7
Everyone has the right to have rights. They are right to have rights. It is right to have rights. It is right to be everyone.
—–
*Article in Guardian to this effect. ‘Stop telling X what to do’ is a favourite Guardian meme to be fully explored another time.
Poem posted with permission of the author. George Szirtes is a British poet and translator from the Hungarian language into English
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5 October 2016 by Guest Contributor
Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.
The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants.
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3 October 2016 by Guest Contributor
Zain Taj Dean v The Lord Advocate and the Scottish Ministers [2016] HCJAC 83 – read judgment
The High Court of Justiciary Appeal Court ruled last week that the extradition of Zain Dean to Taiwan would be incompatible with article 3 of the Convention as a result of the conditions in Taipei prison.
The appellant, a 44-year-old marketing consultant, had been living and working in Taiwan when he was involved in a road traffic accident in which a local delivery driver was killed. He was sentenced to four years in prison by the Taiwanese authorities. He absconded to Scotland and became the subject of Taiwan’s first ever extradition case.
The appeal was lodged under sections 103 and 108 of the Extradition Act 2003. Section 87 of this Act requires the judge to decide whether the person’s extradition would be compatible with Convention rights. The appellant argued that evidence was now available which had not been available at the initial extradition hearing. Under s.104 of the Act, the court may allow the appeal if evidence is available and this evidence would have resulted in the judge at the extradition hearing deciding a question before him differently, resulting in the person’s discharge.
It was therefore for the court to determine whether new evidence suggested that the conditions in which the appellant would be held in Taipei prison were not article 3 compliant.
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3 October 2016 by Guest Contributor
Understanding Standing: Post 2 of 3 Art 263(4) TFEU
Has Art 263(4) of the Lisbon Treaty achieved Advocate General Jacobs’ ideal of “the law itself [being] clear, coherent and readily understandable.” (See UPA Opinion at [100])?
No. As shall be seen in this post, to continue the maritme metaphor in this series, standing is still a rough and unpredictable sea to navigate. Many a case have been scuppered on the reefs of inadmissibility. Quite why this is the case requires us to pick apart the three notions of “implementing measures”, “direct concern” and “regulatory act”.
To some extent, this post will be rather technical. It is aimed for those who are interested in an overview of the operational problems and internal inconsistencies that lie in the third head. Given the limits of space, it is not possible to discuss at great length all of the finer nuances. Those who are interested may find my article in the European Journal of Legal Studies here which puts the flesh on the bones of this necessarily skeletal overview.
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22 September 2016 by Guest Contributor
Understanding Standing: Post 1 of 3
Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.
Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.
Introduction
Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.
The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.
- The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
- The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
- The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.
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25 August 2016 by Guest Contributor
Photo credit: the Guardian
No, said the Supreme Court in McDonald v McDonald [2016] UKSC 28 – read judgment.
Facts
Fiona McDonald was a private sector tenant. The landlords were her parents who had purchased the property by obtaining a secured loan from a private company. They fell into arrears of the monthly payments, and the company sought possession pursuant to a s.21(4) Housing Act 1988 (‘HA 1988’) notice. The arrears were not substantial, but they had persisted for some time.
An Article 8 defence was raised as Fiona had mental health problems in the form of psychiatric and behavioural issues.
The Supreme Court rejected her defence for the following reasons.
No Article 8 assessment
The appellant argued that the court, as a public authority under s.6(1) of the Human Rights Act 1998 (‘HRA 1998’), was required to carry out an Article 8 assessment in such circumstances.
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22 August 2016 by Guest Contributor
By Pritesh Rathod
RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.
The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.
Background facts
The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008. From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape. What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.
Initially, H was arrested and charged with six counts of rape. He was bailed subject to certain conditions. While H was in custody, RT wrote to him saying that she missed him and wanted him back home. Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.
By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him). In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes. Later that month, she retracted her allegations, saying that all of them were untrue. H appeared at the Crown Court and was acquitted after the prosecution offered no evidence.
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4 July 2016 by Guest Contributor
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Article 50 of the Treaty on European Union (TEU) is the red button for the nuclear option of withdrawal from the EU, and in its design, it was never really, truly envisioned to be pressed. Without testing, and without precedent, we are left with no idea of the potential fallout of pressing that red button. Compared to the quasi-constitutionism of Article 2 TEU evoking the values ‘common to the Member States’ of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women’; or the brutal legalism of Title VII of the Treaty of the Functioning of the European Union (TFEU) on competition, tax and the approximation of laws; Article 50 TEU is anaemic. It is, essentially, a button triggering a countdown clock, which is on a comparable level of advancement to the 1980s floppy disk.
The two-year countdown
Triggering Article 50 TEU will begin a two-year countdown to the end of UK Membership of the Union. Within that two-year period an agreement determining the withdrawal arrangements and the future relationship with the Union must be made. Barring a unanimous decision to extend the period, at the end of two years from the point of notification, the UK will no longer be a Member. The Treaties, and all rights and duties therein, cease to apply.
But now, as the British political establishment play a game of “pass the red button”, we are faced with some confounding, and concerning questions from a rights’ perspective. Likely to be lost in the two-year scramble for a political and trade agreement between the UK and EU, which will attempt at all costs to avoid the fall-back position of the application of WTO trade rules, are the very rights and values held as common between the (ex-)Member State(s). During that two-year period, EU law and (pertinently) EU rights will continue to apply in the UK. Free movement will still be (from a legal perspective) free, and claimants may still rely on their EU rights in the Courts. But then what? What happens when the clock strikes zero?
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2 July 2016 by Guest Contributor
Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.
Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey.
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26 June 2016 by Guest Contributor
We’re quiet at the UKHRB, but working on it. In the meantime, here is a level headed prognostication of where the EU arbiter – no longer head arbiter for us, but for the time being – will need to go.
Thank you Eutopia law for permission to repost this instructive article by Professor Peter Lindseth.
“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum. Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.
But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?
We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog,
the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic.
This post is in that spirit.
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13 June 2016 by Guest Contributor
Last year 32,446 people subject to immigration control in the UK were detained by the government. Some had entered the country irregularly and were quickly removed. Others were detained pending removal or deportation. More than half of them were released back into the community, meaning that their detention had served no purpose.
But what many people don’t know is that many of those detained were ordinary people, many of whom had lived in the UK for decades and, until they were detained had been quietly going about their everyday lives with their partners and children. Some have never known any other home, and have husbands and wives, sons and daughters, jobs, homes, lives right here in Britain. Decisions to detain pay no heed to the impact of such a decision on the wider family. Parents are removed without warning from the heart of the family.
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8 June 2016 by Guest Contributor
1 Crown Office Row and Hart Publishing are delighted to announce the publication of
‘The Inquest Book: The Law of Coroners and Inquests’ edited by Caroline Cross and Neil Garnham
with contributions from barristers at 1 Crown Office Row
We are delighted to offer readers of the UKHRB a 20% discount on the book! Please see below for details of how to order with your discount
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12 May 2016 by Guest Contributor
John Wadham today takes on the role of National Preventative Mechanism chair. He was formally Chief Legal Officer for the Equality and Human Rights Commission, Deputy Chair of the Independent Police Complaints Commission and most recently the Director of the international human rights organisation, Interights. Throughout his career, John has worked to protect the rights of detainees.
We are delighted to feature this from John on his new role:
The National Preventive Mechanism describes the network of independent statutory bodies that have responsibility for preventing ill-treatment in detention. In every jurisdiction of the UK – England, Northern Ireland, Scotland and Wales – the bodies in this network have the job of inspecting or monitoring every place of detention to try to prevent the ill-treatment of those detained. Whether a person is compulsorily detained in a prison, an immigration removal centre, a psychiatric hospital, or as a child in a Secure Training Centre, there is an organisation responsible for assessing how detainees are treated and ensuring that no ill-treatment will be tolerated.
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is the international human rights treaty designed to strengthen the protection of people deprived of their liberty by requiring National Preventive Mechanisms to be set up in every country. OPCAT’s adoption by the United Nations General Assembly in 2002 demonstrated a consensus among the international community that people deprived of their liberty are particularly vulnerable to ill-treatment and that efforts to combat such ill-treatment should focus on primarily on prevention. OPCAT embodies the idea that prevention of ill-treatment in detention can best be achieved by a system of independent, regular visits to all places of detention. OPCAT entered into force in June 2006. There are already 80 countries party to OPCAT, and 62 designated NPMs across the world – all designed to prevent ill-treatment in their places of detention. The UK ratified OPCAT in December 2003 and designated its own NPM in March 2009.
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6 May 2016 by Guest Contributor
Photo credit: Guardian
By Marina Wheeler QC
In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.
It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.
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27 April 2016 by Guest Contributor
Aranyosi and Căldăraru [C-404/15 and C-659/15 PPU].
On 5 April 2016, the Court of Justice of the European Union (CJEU) ruled that the execution of a European Arrest Warrant (‘EAW’) must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention for the person concerned in the requesting state. If the existence of that risk cannot be discounted within a reasonable period, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be deferred or brought to an end.
The cases concerned two totally unrelated and separate extradition requests: a Hungarian accusation warrant seeking the person for trial, the other a Romanian conviction warrant so the person sought could serve a prison sentence. The requested state in both cases was Germany.
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