Media By: Guest Contributor


Equal Civil Partnerships: Implications of Strasbourg’s latest ruling for Steinfeld and Keidan – Helen Fenwick & Andy Hayward

21 November 2017 by

Ratzenböck and Seydl v Austria (ECtHR) 26 October 2017 – read judgment

Equal civil partnerships divide opinions. For their proponents, access to such a status, and the legal benefits that follow, allows couples critical of marriage – whether same or different-sex – the ability to express their relationship through (in their view) a more appropriate, modern and egalitarian legal institution. Opponents question such a need in light of the availability of civil marriage, which has over centuries evolved and may not now necessarily be perceived as embodying the patriarchal or heteronormative values that its critics challenge. Calls for allowing different-sex as well as same-sex couples to enter civil partnerships in England and Wales have grown louder recently following the failed Equal Love case (Ferguson v UK), the production of several Private Members Bills and the on-going litigation in Steinfeld and Keidan v Secretary of State for Education, due to be heard by the Supreme Court in Spring 2018. The desire, however, for different-sex civil partnerships is not limited to this jurisdiction, and was recently explored for the first time by the Strasbourg court in Ratzenböck and Seydl v Austria. After exploring the background to this legal challenge, this post will critically analyse the reasoning of the Strasbourg Court and assess its implications for the challenge in Steinfeld.

The key argument this piece puts forward is that states should not maintain asymmetry of access to formal relationship statuses based on sexual orientation: if a state has introduced registered (civil) partnerships it should open them to both different and same-sex couples, an argument that also applies to marriage. The term ‘asymmetry of access’ will be used to cover: offering access to marriage for different-sex couples and no such access to same-sex ones who also cannot access any registered partnership scheme; offering access to marriage to different-sex couples and access to such a scheme to same-sex ones; offering access to either of two formalised relationship statuses to one group of couples, based on gender and sexual orientation, and access to only one such form to the other group.
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Lucy Eastwood – “A law on the move: Are Local Authorities vicariously liable for abuse committed by foster parents against children in their care?”

23 October 2017 by

Supreme Court

“The law of vicarious liability is on the move” proclaimed Lord Phillips in the last judgment he delivered as President of the Supreme Court: Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, (“the Christian Brothers case”). In a judgment recently handed down by the Supreme Court in the case of Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC 60, His Lordship has been proved correct.

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Implementation of ECHR judgments – have we reached a crisis point?- Lucy Moxham

7 July 2017 by

In recent years direct challenges to the authority of the Court within a handful of member states have also become more explicit and vocal” and “the Convention system crumbles when one member state, and then the next, and then the next, cherry pick which judgments to implement.

So said Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights, last year. This raises the question of whether the Convention system is facing an implementation crisis and what more might be done by the Committee of Ministers, the regional body responsible for supervising the execution of judgments of the European Court of Human Rights.

Last month, the Bingham Centre for the Rule of Law and Leicester Law School convened a public event that asked an expert panel to consider these issues. Speakers included Merris Amos (Queen Mary University London); Dr Ed Bates (Leicester Law School); Eleanor Hourigan (Deputy Permanent Representative, UK Delegation to the Council of Europe); Nuala Mole (The AIRE Centre); and Prof Philip Leach (EHRAC, Middlesex University London and the European Implementation Network). Murray Hunt (Legal Adviser to the UK Joint Committee on Human Rights and incoming Director of the Bingham Centre) chaired the event.

While a detailed summary of the presentations is available on the Bingham Centre website, this post highlights some of the headline points from the conversation.
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The role of employee legitimate expectations in unfair dismissal claims – Lauren Godfrey

30 June 2017 by

A recent EAT ruling JP Morgan v Ktorza continues a line of decisions which limit the role of employee expectations in the determination of unfair dismissals claims further curtailing the extent to which employees can rely on public law notions or human rights principles to challenge their dismissals.

In this case HHJ Richardson re-affirmed the correct approach to dismissal claims: (1) it is the employer’s view objectively judged which falls to be considered not the expectations of the employee; (2) the Employment Tribunal is not to substitute its own view; and (3) the s 98(1)-(2) of the Employment Rights Act 1996, gateway of ‘conduct’ as the reason for a dismissal should not be conflated with the band of reasonable responses test under s 98(4).

Background facts and law

Mr Ktorza was a highly paid sales executive in the trading arm of JP Morgan Securities Plc before his dismissal after an incident of alleged misconduct triggering an earlier (unrelated) final written warning. The more recent incident which resulted in JP Morgan deciding to dismiss Mr Ktorza was a practice known as ‘short-filling’ in respect of trades; a practice which carried financial and regulatory risk for JP Morgan.
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International human rights can help reverse yet another heavy blow on sexual and reproductive health

25 June 2017 by

Koldo Casla  of the Policy, Research and Training Manager of Just Fair @JustFairUK, an organisation that monitors and advocates economic and social rights in the UK

Women’s sexual and reproductive rights are not safe and accessible in all corners of the United Kingdom: see Rosalind English’s post on the Northern Irish situation here and here.

Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).

Abortion is still a crime in Northern Ireland. Women who choose to exercise their sexual and reproductive rights have to travel to mainland Britain, but they have to face costs (about £900 in the recent case discussed by Rosalind English) that would not apply if they lived in England, Wales or Scotland.

By a majority of 3 to 2, the Supreme Court ruled that, while this situation does in principle concern the right to enjoy a private and family life without discrimination (Articles 8 and 14 of the European Convention on Human Rights), the difference in treatment is justified because the decision on this matter falls under the powers of the devolved administration of Northern Ireland (paragraph 20 of the Judgment). And therefore the human rights of women living in Northern Ireland are not being breached.
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Once more unto the breach

15 June 2017 by

The ClientEarth litigation on air pollution rolls into a new phase, six years after they first began proceedings. This post tells the story.

 On 31 May 2017, the environmental NGO ClientEarth announced that it had launched a third round of litigation against the government in relation to air pollution.

ClientEarth have stated that the policy measures set out in DEFRA’s latest draft Air Quality Plan for the UK (the 2017 Plan) do not meet the legal standard, and that more ambitious and far-reaching government action is required.

The 2017 Plan here, which is open to consultation until 15 June (so it ends today), addresses the continuing illegal levels of Nitrogen Dioxide (“NOx”) pollution that are present in both urban and rural areas all across the UK. However, environmental groups have been largely united in their criticism of the 2017 Plan’s limited content. The government had been required by European law to achieve NOx compliance by 2010, but the 2017 Plan now anticipates NOx breaches continuing into the 2030’s.

Currently, 40,000 premature deaths per year in the UK are estimated to be associated with air pollution.

ClientEarth have created an online platform for submitting responses here.

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Breverse: Politically Problematic but Legally Possible, by Rose Slowe

14 June 2017 by

eu-1473958_1920

On 29 March 2017, Theresa May’s Article 50 letter of notice was delivered to Donald Tusk, thereby formally triggering the Treaty-based process for the UK’s withdrawal from the EU. The question remains: is this trajectory irreversible, or can the UK rescind its notification?

While the legal arguments in favour of Article 50’s revocability have already been raised repeatedly in academic discourse, they now merit reconsideration. The results of the UK general election on 8 June have brought about a substantive change of circumstances, and the notion of Breverse no longer seems relegated to the realms of academic hypotheticals. This post explores the legal reality of revocability as a matter of UK constitutional, EU and international law, before considering how the current political situation interacts with this.

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Munira Ali: Examining the dissolution of the Joint Committee on Human Rights’ inquiry into mental health and deaths in prisons: another missed opportunity?

7 June 2017 by

The issues relating to imprisonment of individuals with mental health problems in the UK has attracted considerable attention, as the number of self-inflicted deaths has risen to the highest number since records began in 1978. With a rate of one prison suicide every three days, the director of the Howard League described the current rate as having reached “epidemic proportions”.  The steady rise of deaths in custody has prompted a series of inquiries in recent years, and has drawn scrutiny from UN bodies and Special Procedures, and more recently, UN Member States as part of a periodic review of its human rights performance. However, despite this, little progress has been made.

In view of this reality, the Joint Committee on Human Rights launched an inquiry into mental health and deaths in prison in 2016 in order to determine whether a human rights based approach can help to prevent deaths in prison of individuals with mental health conditions i.e. one that satisfies acceptable standards as laid down by national and international human rights law, and recognises the particular position of vulnerability in which detainees are placed. The inquiry specifically looked at why previous recommendations had not been implemented. To this end, the Committee received both oral and written evidence from authors of the various domestic inquiry reports and individuals whose lives have been directly affected by the issue, including relatives of individuals who had committed suicide in prisons.

However, the inquiry was unexpectedly cut short as a result of the decision to call a snap election.

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Scottish law on sexual offences incompatible with human rights

7 April 2017 by

AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2017] UKSC 25 – read judgment 

This week the Supreme Court ruled handed down its judgment on the legality of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009.

Section 39(1)(a) of the 2009 Act allows a person accused of sexual activity with an under-age person to rely on the defence that, at the time, he or she believed that the under-age person was in fact over the age of 16. Section 39(2)(a)(i), however, deprives the accused of this defence where he or she has previously been charged by the police with a ‘relevant sexual offence’. The relevant sexual offences are set out in Schedule 1 of the 2009 Act.

The appellant argued that s.39(2)(a)(i) of the 2009 Act is not compatible with the European Convention on Human Rights (“the Convention”). If a Scottish Act is incompatible with a right under the Convention, in accordance with section 29 of The Scotland Act 1998, it is outwith the competence of the Scottish Parliament and therefore not law. It was submitted that section 39(2)(a)(i) was incompatible with Article 6 (right to a fair trial), Article 8 (right to privacy and family life) and Article 14 (prohibition on discrimination) of the Convention.
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Rose Slowe: Article 50 Notice and Implied Conditionality

7 April 2017 by

England Europe

More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.

On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.

That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is indeed irrevocable. Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given. The arguments in favour of revocability are difficult to dispute, finding their basis in the UK constitution, EU Treaties and international law.

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Assisted suicide and the right to private life: the enduring repercussions of Nicklinson – Stevie Martin

22 March 2017 by

hand-in-hand-1686811_1920In the almost three years since the Supreme Court delivered its reasons in Nicklinson (in which a majority refused to issue a declaration that the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (‘ECHR’)), similar questions of compatibility concerning analogous bans have been considered by courts in Canada, South Africa and New Zealand. Additionally, California and Colorado have introduced legislation permitting physician-assisted suicide (taking the total to six States in the US which permit physician-assisted suicide), France has introduced legislation enabling patients to request terminal sedation, and Germany’s Federal Administrative Court this month handed down judgment confirming that the right to self-determination encompasses a right of the ‘seriously and incurably ill’ to, in ‘exceptional circumstances’, access narcotics so as to suicide.

Given news of a new challenge by Noel Conway to the compatibility of s 2(1) of the Suicide Act with Article 8 (the application for permission to review was heard by the Divisional Court yesterday with judgment reserved), it is, then, a propitious time to re-examine a particularly dubious aspect of the majority’s reasoning in Nicklinson namely, its characterisation of the declaratory power, not least given the potential for such reasoning to deleteriously affect the new challenge.
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The extraterritorial application of the EU Charter in Syria: To the Union and Beyond? – Michael Rhimes

10 March 2017 by

1) The Situation

no one leaves home unless

home is the mouth of a shark

you only run for the border

when you see the whole city running as well

  • Warsan Shire

Shire’s words are the background to the recent case of C-638/16 X and X. So much was recognized by Advocate General Mengozzi, who concluded his Opinion as follows:

“175. Before concluding, allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach, after his family had attempted, by means of smugglers and an overcrowded makeshift vessel full of Syrian refugees, to reach, via Turkey, the Greek island of Kos. Of the four family members, only his father survived the capsizing. It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it.”
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Rose Slowe: Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

9 March 2017 by

England Europe

On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.

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The Front Page in the Digital Age: Institute of Advanced Legal Studies publishes report on protecting journalists’ sources

3 March 2017 by

newspapers-444447_1920A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.

The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment. Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.

The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources.
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Fathers4 (Access2) Justice: Administrative Court ruling on the public’s right to attend court hearings and the Court Service’s limited powers of control – Chris Adamson

8 February 2017 by

fathers4justice-pic

R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin)

Summary

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.

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