By: Guest Contributor
24 August 2015 by Guest Contributor
When a legal challenge to one of the coalition Government’s flagship welfare reforms – an overall cap of £26,000 per year on the amount any family could receive in benefits – was reviewed by the Supreme Court earlier this year, the resulting judgment left many observers scratching their heads. Had the Court declared the cap unlawful or not? The answer seemed to be a mixture of yes and no.
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6 August 2015 by Guest Contributor
Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776 (21 July 2015) – read judgment
In my last post on UKHRB I commented on developments in UK, ECHR and EU jurisprudence relating to procedural fairness in the context of national security.
The developments in this recent case offer some further interesting thoughts on the topic. To explain the case, and put its ramifications in a broader context, this post will be divided into three parts. In the first I outline my original argument as set out in the earlier post. The second will explain the case itself. The third will offer five brief comments on the broader issues the cases touches upon.
In brief, the court in Kiani followed Tariq and held that AF-type disclosure (see below) was not a universal requirement of fairness; the interests of justice could require a lower standard of disclosure without violating the absolute right to a fair hearing.
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31 July 2015 by Guest Contributor
O’Connell & anor v the Turf Club [2015] IESC 57 – read judgment
This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this jurisdiction’s legal debate, that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.
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24 June 2015 by Guest Contributor
Much has been said about our surveillance law and much more will be said in Parliament’s debate on Thursday. And yet, how we talk about surveillance law merits at least as much concern as what we say about it. Over-intrusive government surveillance is a problem. But so too is loose language in opposition to it.
The Oxford English Dictionary (Online) describes a ‘snooper’ as ‘one who pries or peeps; spec. one who makes an intrusive official investigation. orig. U.S.’ So it is, at best, an American term for an officious busy-body and at worst someone prying or peeping. This is hardly an administrative accolade or term of endearment – unless one has rather curious definitions of government and/or courtship.
Further etymological investigation reveals that the term ‘to snoop’ is Dutch in origin, and one use would be to describe a servant “slyly going into a dairy room and drinking milk from a pan.” It seems a Dutch Downton Abbey would have even more intrigue than the English one does. For none of these definitions or descriptions would we want Parliament to legislate. No-one is on the side of the ‘snooper’.
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22 June 2015 by Guest Contributor
Chiragov and Others v. Armenia (App No 13216/05) – read judgment
In two important decisions, the Grand Chamber of the Strasbourg Court has held that the forced displacement of peoples from the disputed region of Nagorno-Karabakh during the armed conflict between Azerbaijan and Armenia constituted a violation of Article 1 of Protocol 1 (right to the peaceful enjoyment of property) and Article 8 (right to a private and family life) of the European Convention on Human Rights.
The case of Chiragov which concerned the forced displacement of Azerbaijani nationals was decided in parallel with the Grand Chamber judgment in Sargsyan v Azerbaijan (found here). Sargsyan was delivered on the same day and reached the same conclusions in respect of Armenian nationals forced to flee from Azerbaijani territory.
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19 June 2015 by Guest Contributor
R (Victor Nealon) v Secretary of State for Justice : R (Sam Hallam) v Secretary of State for Justice [2015] EWHC 1565 (Admin), 8 June 2015 – read judgment
As Michael Gove contemplates the future of the Human Rights Act 1998, the High Court has considered how far the presumption of innocence in Article 6(2) ECHR spreads into decisions on payment of compensation for a miscarriage of justice. In doing so, Burnett LJ also managed to find some less than complimentary sentiments about the Strasbourg court’s decision-making.
Sam Hallam was convicted of murder in 2011. Victor Nealon was convicted of rape in 1997. Both successfully appealed against their convictions and then applied to the Secretary of State (‘SoS’) for compensation under s133 of the Criminal Justice Act 1988 (the ‘1988 Act’’), as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (the ‘2014 Act’). Both men were refused compensation on the basis that their circumstances did not meet the s133 statutory test (as amended).
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13 June 2015 by Guest Contributor
British legal history has long inspired the common law world. The Magna Carta, an 800-year-old agreement between a King and his barons, remains an icon of liberty, seen around the world as the foundation stone of the rule of law. In contrast, British law on online surveillance and privacy has been arcane and obscure – a field that is for reluctant experts if it is for anyone at all.
The law has largely been developed in reaction to external pressure. The Regulation of Investigatory Powers Act 2000 was the result of a series of judgments of the European Court of Human Rights. The Data Retention and Investigatory Powers Act 2014 was rushed into law after an EU Court of Justice ruling. This piecemeal approach provides a poor basis for investigatory powers and a worse one for privacy rights.
Momentum towards change has been building. The Edward Snowden revelations brought to an end the public’s ignorance – or quiet endurance – of state surveillance operations. So, although last year’s emergency law permits ongoing data surveillance, it also put in motion a review of the powers of intelligence and law enforcement agencies.
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13 June 2015 by Guest Contributor
Re A (A Child; Wardship; Fact : Finding : Domestic Violence [2015] EWHC 1598 (Fam) – read judgment
This recent domestic violence case involving a child and the comments made by Mrs Justice Pauffley have been exciting the interest of both the media those agencies involved in child protection, such as the NSPCC.
Background facts
The parents met in 2004 and were married in India in January 2005. They travelled to England in 2006 on six month visas. They became ‘over stayers’ when those visas expired and they decided not to return. They lived in a series of addresses with other families.
In June 2007 their only child, A, was born.
It was the mother’s case that after about three months the marriage became unhappy – a situation which continued until the final separation in 2013. The father, by contrast, maintained they were very happy until about 2011.
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4 June 2015 by Guest Contributor
Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.
In this post, I want to talk about the European Court of Human Rights in Strasbourg.
The government’s key concern – judging by the Grayling paper published last October – is that the Strasbourg Court has got too big for its boots and won’t stop telling us what to do. Hence the manifesto commitment to introduce a British Bill of Rights. The Prime Minister’s personal gripe – with some justification – is the Court’s 2005 ruling on prisoner voting: Hirst v UK (No.2) (2005) 42 EHRR 849.
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2 June 2015 by Guest Contributor
The October 2014 Conservative Party proposals promised to:
End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement.
In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point
at which our Bill comes into effect.” (see proposals here )
The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and the Queen’s Speech on 27th May promised that there would be a consultation exercise (see summary here)
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22 May 2015 by Guest Contributor
Sajid Javid’s reported objections to the Government’s pre-election proposals on countering extremist ideas uncover just how controversial the new laws will be. He had objected, it seems, to a mooted expansion of Ofcom’s powers to take pre-emptive action to prevent the broadcast of programmes with ‘extremist content’ before they are transmitted.
That specific proposal may no longer be part of the proposed laws, but Ofcom is likely to be given powers to move against broadcasters after transmission. And there will be plenty else to discuss when the legislation is likely announced in the Queen’s Speech next week.
The main points have already been revealed when last week the Prime Minister and the Home Secretary announced that new laws will be introduced ‘to make it much harder for people to promote dangerous extremist views in our communities.’ As always in counter-terrorism laws, the relationship between freedom and security will be brought into sharp focus when the proposals are debated. In this piece we set down some of the questions which we think warrant attention.
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22 May 2015 by Guest Contributor
Constitutional Futures 2015 – 2025 – a vignette, and comment
January 1, 2025
As the first day of 2025 dawns the people of the Kingdom of England wake looking forward to the arrival of their new passports, issued by the United States of… America. Governor Farage’s message is unusually sober, encouraging, almost apologetic:
While we had hoped to make our future with the Commonwealth, despite our best efforts, and the tireless advocacy of the Royal Family, we must acknowledge that our former friends are content with their lives and more local partners. We thank Her Majesty, and her family, for their service. We wish them well with their continued public service in Scotland, Canada and elsewhere.
While the bargain our NAFTA partners have struck is a bracing one, it is one which I believe we can live with, and indeed thrive under. As the fifty-first state, the first to join since Hawaii in 1959, we rejoin friends older than the New Zealanders, Australians, Canadians; we go back to our shared Mayflower roots.
President Clinton assures me that she expects Baroness Hale to be confirmed to the Supreme Court. I’m sure she will do great work weaving British principles into our new shared constitution.
With representatives in the House, and Senators Cameron and Umuna in the Senate, we can look forward to a prosperous future as a new and vital part of a nation we can claim have been with, in some ways, since it began.
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19 May 2015 by Guest Contributor
It’s time to tell the untold story of the Human Rights Act.
With the post-election dust barely settled, the Human Rights Act is firmly in the Conservatives’ sights. Caught in the crosshairs is section 2 HRA, which requires UK courts to take into account, but not necessarily follow, the case law of the European Court of Human Rights.
Also under fire is Article 46 of the European Convention, which makes Strasbourg judgments against the UK binding upon it in international law. This much is clear from the ‘Grayling paper’ of October 2014, the Conservative manifesto, remarks made by Lord Faulks in the pre-election Justice debate (analysed here by Mark Elliott), and post-election comments by David Cameron.
Absent from this debate is the fate of other provisions of the HRA, among them section 6, which requires public authorities to act compatibly with Convention rights unless primary legislation requires otherwise, together with remedies for breach provided for in sections 7 and 8.
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15 May 2015 by Guest Contributor
On 24 March, The Dickson Poon School of Law, King’s College London hosted a public debate on ‘The Human Rights Act: the Bill of Rights for the 21st Century?’ at Inner Temple. The panellists were Dr Colm O’Cinneide, Mr Martin Howe QC, Lord Phillips of Worth Matravers, and Mr John Wadham. Professor Aileen McColgan chaired.
Lord Phillips began by reminding us that King John never intended to respect Magna Carta, and that its most iconic sections were not the most prominent in the original document. He went on to point out that the UK’s ‘motive in participating’ in the European Convention of Human Rights ‘was the belief that other members of the Council of Europe should be under the obligations that it imposed.’ A ‘groundswell of dissatisfaction’ with the working of the Convention had led to critics portraying the Human Rights Act today – rather like Magna Carta in its infancy — as a disturbance to an historical order. The British Bill of Rights now proposed by the Conservative Party was
intended, as I understand it, to give the Supreme Court, rather than the Strasbourg Court, the last word in the correct interpretation of the Human Rights Convention. I have yet to see a draft of this; but in principle I am not in favour…Under the scheme of the Convention it is ultimately for the Strasbourg court to give authoritative rulings on its effect. I emphasise the word “ultimately”. Before according the Strasbourg Court that last word, there is room for dialogue.
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3 April 2015 by Guest Contributor
When late last year the US Senate Select Committee on Intelligence published parts of its 6,700 page report on the CIA’s detention and interrogation programme, it shed light – remarkable light – on how the ‘war on terror’ had been conducted by the US for some time.
It very rightly prompted questions for this country. The most immediate and top level question was, if that is what the US did, what did Britain do? But one need barely scratch the surface of the matter before encountering some difficult questions about method – how do we find out what Britain did? – and about scrutiny – are there lessons to be learned about oversight and accountability?
We review here some of the expert opinions and highlight five issues that, if the experts are right, are likely to lie at the heart of debate for some time to come.
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When a legal challenge to one of the coalition Government’s flagship welfare reforms – an overall cap of £26,000 per year on the amount any family could receive in benefits – was reviewed by the Supreme Court earlier this year, the resulting judgment left many observers scratching their heads. Had the Court declared the cap unlawful or not? The answer seemed to be a mixture of yes and no.
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