Lights in the Dark: My speech to the Withington Girls’ School’s Model United Nations Conference

IMG_0242I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s  Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues.

In case you are interested, I have reposted the text of my speech below and as a PDF here. It’s a long-read, but in it I work through why I came to human rights as a career choice and why I think they are important.

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Would a second EU referendum be undemocratic?

Would a second EU referendum be undemocratic?

It is only four days since the UK public narrowly voted to leave the European Union. A lot of people are now arguing for a second referendum. But would that be democratic? 

Like many people who voted to remain, I have been feeling down about the result. My social media feeds have been full of many of the states of grief, but mostly anger and denial. It is denial which, I think, is motiving the calls for a second referendum. I am therefore wary, as someone who would love for this all magically to go away, of the allure of those arguments. But, we are in uncharted waters. Millions are calling for a second referendum on the original question, and now likely Conservative leadership candidate Jeremy Hunt has called for a second referendum to decide whether the country would accept an exit deal.

Hunt’s argument is enticing, at first glance anyway. He begins by saying that ‘The people have spoken – and Parliament must listen“. But – but! – “we did not vote on the terms of our departure“. In short, he wants to open up “a space for a “Norway plus” option for us – full access to the single market with a sensible compromise on free movement rules”. And he thinks the best way to make that happen is to negotiate an informal deal before invoking Article 50 (therefore setting a two-year time limit) and “once again… trust the British people to decide on whether or not it is a good deal”.

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Very limited availability: Exclusive briefing on Jogee, the landmark Supreme Court Joint Enterprise case

morning-breakfast-croissantI and Diarmuid Laffan are giving a breakfast briefing this Wednesday 25 May from 8:30am to 9:30am on the aftermath in R v Jogee, the Supreme Court case on the law of joint enterprise in which we both acted as juniors.

The briefing is aimed at solicitors. We have a very few spaces left – if you would like to attend please email Lisa.Pavlovsky@1cor.com as soon as possible.

The briefing will:

  • Explain key parts of the judgment, including the human rights arguments
  • Discuss how the case is likely to affect future cases and out of time appeals

1 Crown Office Row’s public law breakfast briefings are informal discussions of topical areas of public law. The briefings are short and to the point and discussion and questions are encouraged. The briefing will be chaired by 1 Crown Office Row’s Amy Mannion.

The British Bill of Rights Show: Series 14, Episode 9… *Zzzzzzz*

Gove bends the knee

Gove bends the knee

It came and went, and we know nothing more. Yesterday, =the government said, through the Queen, that:

Proposals will be brought forward for a British Bill of Rights. My government will bring forward proposals for a British Bill of Rights. My ministers will uphold the sovereignty of Parliament and the primacy of the House of Commons.

All of the signals were pointing to no activity before the EU Referendum, and that was proved right.

It makes sense. We don’t even know if Michael Gove will still be in post after the referendum, and if we are leaving the EU we may want to fold bigger constitutional questions into the bill of rights debate anyway.

So, like a particularly boring 18-season box-set, the saga continues. But if the government continues to delay, at least each new episode brings forth some interesting reactions and coverage, and here is some of it:

  • This is by me: 4 Charts Which Show The European Court Of Human Rights Has Dramatically Changed Its Approach To The UK (RightsInfo)
  • What Did The Queen’s Speech Tell Us About The Bill Of Rights? (RightsInfo)
  • Lockerbie relatives, football supporters and domestic violence survivors among more than 100 groups standing together against Human Rights Act repeal (Liberty)
  • Why Michael Gove should drop his Bill of Rights plans (Head of Legal/Carl Gardner)
  • The 2016 Queen’s Speech and the Constitution (Public Law For Everyone)

See you next series. Or episode. Or something.

Heterosexual Civil Partnership Refusal Not A Human Rights Breach

Photo: BBC News

Photo credit: BBC News

Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin) – Read judgment

The High Court has ruled in the case of Steinfeld and Keidan v Secretary of State for Education, a human rights challenge to the law of Civil Partnerships. Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

The case arises from the odd state the law was left in after same-sex couples were given the legal right to marry in 2014. Since 2005, same-sex couples had been allowed to form “Civil Partnerships”  which give them essentially the same legal rights and protections as marriage without being able to actually marry. Only same-sex couples can have a civil partnership. Civil Partnerships were a kind of half-way house; the message they sent was that the (New Labour) government wanted to give same-sex couples legal protection akin to marriage but didn’t feel that society was quite ready for full marriage equality.

Once same-sex couples were given the right to marry in 2014, the law was left in a bit of a mess. Same-sex couples have dual means of recognising their partnerships (Civil Partnerships and Marriage) whereas opposite-sex couples could only marry. This is clearly an unintended consequence of the winding route to marriage equality rather than any well-thought out plan.

In 2014, it would have been open to the government to abolish civil partnerships altogether or permit everyone to enter into them. Instead, a “wait and see” approach was adopted.

Rebecca Steinfeld and Charles Keiden (full disclosure: they are friends of mine) wanted to enter into a civil partnership but were prevented because they were not of the same sex. They brought a human rights case against the government saying they were being discriminated against by the current law.

Mrs Justice Andrews rejected their case in strong terms. You can read the full judgment here. I recommend doing so – it is tightly argued and very clear.

In cases involving the right to family and private life, there are two basic stages a judge needs to consider. First, is there an interference with the right – in other words, does the thing that is being complained about interfere with family or private life as it is defined in the European Convention and court judgments. Let’s call that Gate 1. If you get through Gate 1, you then have to get through Gate 2, which is to show that the interference was not justified with reference to proportionality (did the end justify the means?) and other balancing factors which are the text of the right itself.

The claimants here didn’t get through the first gate. Mrs Justice Andrews accepted the government’s argument that Article 8 of the European Convention on Human Rights (the right to family and private life) was not even engaged, let alone breached. Here’s a key bit of the judgment explaining why:

  1. The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience. That was the case both before and after the enactment of the 2013 Act. Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same- sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 [Same-Sex Marriage] Act. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one.

See the powerful argument on UK Human Rights Blog (written before the judgment) about why this might be problematic.

As judges usually do, Mrs Justice Andrews went on to consider “Gate 2″ anyway, in case she was wrong about Gate 1. She accepted the government’s argument that their approach to the issue (“wait and see”) had been perfectly reasonable.

Where next? Potentially an appeal. The BBC reports the couple were given permission to appeal which means they can appeal to the Court of Appeal if they choose to do so. If they do appeal, they will have to convince the Court of Appeal that there has been an interference with the right to family life (Gate 1 – certainly arguable) but also that the interference was not justified. Gate 2 will be harder.

As things stand, the law is in a mess. Even if it is not a breach of human rights to refuse opposite sex couples the right to have civil partnerships, that doesn’t mean it is fair or right.

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