By: Adam Wagner


Is it legal to teach gay hate in schools?

19 February 2012 by

Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.

Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:

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Supreme Court rules BBC need not reveal internal Israel-Palestine coverage report

15 February 2012 by

Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation (Respondent) [2012] UKSC 4 – Read judgment / press summary

The Supreme Court has ruled unanimously that an internal BBC report into its coverage of the Israeli Palestinian conflict was “information held for the purposes of journalism, art or literature” and therefore need not be released to the public under the Freedom of Information Act (FOIA).

Four of the justices were of the view that even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of the FOIA. Lord Wilson however, was of the opinion that if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes. The BBC will be relieved that the “partly” view prevailed, as the “predominately” test might in practice have brought a lot of internal documents within the scope of the FOIA.

The “Balen Report” was commissioned by the BBC in 2004 by a senior broadcast journalist, Michael Balen. It was commissioned following allegations of bias in the coverage. Mr Sugar, a solicitor, applied to see the report under the Freedom of Information Act 2000. The BBC argued that the report was “information held for the purposes of journalism, art or literature” and therefore fell outside of the Act under the terms of section 7 of Schedule 1 to the Act.

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Sound of tumbleweed greets secret civil trials proposals

14 February 2012 by

65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.

Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.

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Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court

8 February 2012 by

This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.

Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2 – Read judgment / press summary

The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under article 2 of the European Court of Human Rights (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.

My initial thoughts are that this is potentially very important, and follows on from Savage in gradually expanding the reach of Article 2, and therefore the liability of mental health hospitals to patients and (as was crucial in this case) their families. The court observed that Ms. Rabone, who committed suicide after being granted 2-days of home leave by the hospital, could have been detained under the MHA in any event, so the distinction between a voluntary and detained patient was of form rather than substance.

Nonetheless, the decision appears to endorse an “each case on its own facts” approach, and will affect human rights damages claims and arguably so-called article 2 inquests too. Here is a particularly quotable line from Lady Hale at paragraph [92]:

“There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage…”

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Times contempt challenge thrown out in Strasbourg

8 February 2012 by

Michael Alexander SECKERSON and TIMES NEWSPAPERS LIMITED against the UK Applications nos. 32844/10 and 33510/10 – Read decision / press release

The European Court of Human Rights has rejected as “inadmissible” Times Newspaper’s challenge to its 2009 conviction for contempt of court. The decision, which was made by seven judges, is a good example of an early stage “strike-out” by the Court which is nonetheless a substantial, reasoned decision (see our posts on the “UK loses 3 out of 4 cases at the court” controversy).

It has been a bad 24 hours for The Times, with its editor being recalled to the Leveson Inquiry into press ethics yesterday to answer questions about the hacking of a police blogger’s email account to reveal his secret identity, and subsequent disclosure (and lack thereof) to the High Court. Ultimately, James Harding appeared to blame the Times’ now-departed in-house lawyer as well as “legal privilege” – see Professor Richard Moorhead’s excellent post on the ethical issues surrounding this.

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UK Supreme Court is tweeting, but where are the other courts?

7 February 2012 by

The UK Supreme Court began tweeting yesterday as @UKSupremeCourt to deserved international fanfare. Some even speculated that Wikileaks founder Julian Assange’s extradition fate could now be revealed on Twitter.

The court is already being followed by almost 4,000 Twitter users (for the uninitiated, that is a lot) and has already beaten its own Twitter policy’s prediction of “2-3 tweets a week” with eight on its first day. The eventful debut tweets included seven live updates on the swearing-in ceremony of the court’s newest Justice, Lord Reed, and one relenting to Twitter user @FOImanUK‘s valid point that contrary to the court’s stated policy, it should be possible to put freedom of information requests to the court via Twitter.

This is all excellent news. The UK’s newest and highest appeal court is now setting the international standard for open justice, with its splendid press summaries of judgments, live transmission of hearings online (today’s is a very interesting case about the state’s financial responsibility towards disable people), accessible court facilities and generally public-facing approach. This is also as it should be: the Court has a statutory duty to be “accessible”. But the Supreme Court, which is largely independent from the rest of the court system, is now streaking ahead of it in terms of access to justice. And this open justice gap is becoming a problem.

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Julian Assange: from the UK Supreme Court to The Simpsons

1 February 2012 by

The Julian Assange circus rolls back into London today for the UK Supreme Court’s 2-day hearing of his appeal against extradition. It will be broadcast on Supreme Court live from 10:30am.

The Wikileaks founder was granted permission in November 2011 to appeal to the Supreme Court under Section 32 of the Extradition Act 2003. If he loses, unless he brings a claim at the European Court of Human Rights, he will have to face charges of sexual assault and rape in Sweden.

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More secret trials? No thanks

31 January 2012 by

A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.

Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.

If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.

As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:

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Mr Cameron goes to Strasbourg

24 January 2012 by

Updated | In the 1939 film Mr. Smith Goes to Washington, James Stewart plays a local Boy Rangers leader who becomes a US Senator and, against all odds, triumphs agains the corrupt bureaucrats in Washington. Tomorrow, according to The Sun, “battling” Prime Minister David Cameron will be travelling to Strasbourg in, it would seem, similar style to “tell Euro judges to stop meddling in British justice”.

Meanwhile, back in London, the British president of the European Court of Human Rights launched a preemptive strike on Mr Cameron’s speech in today’s Independent, arguing that the criticism from “senior British politicians” relating to the court’s interference is “simply not borne out by the facts“.

Bratza is right that the us-vs-them narrative is partly the result of mischievous human rights reporting by the press. Recent examples are the Daily Mail’s extravagant claim that the UK loses 3 out of 4 cases in Strasbourg, resting on a partial reading of the court’s statistics, and the Telegraph’s seemingly endless run of articles based on low-level immigration decisions, the latest being: Bigamist wins ‘family life’ human rights case. In that case, the original tribunal knew nothing about his alleged other marriages, so it is hard to see what it shows about human rights defences to deportation decisions, except that a claimant possibly lied in court, was found out and will probably now be deported.

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Occupy London to be evicted – full judgment

18 January 2012 by

The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.

The Judiciary website will be publishing the full judgment tomorrow morning, but for those seeking it before then, I have uploaded it here. Below is the very helpful summary of the judgment sent to me by the Judicial Office (with apologies for the numbering, which is a quirk of the blog formatting, not the summary).


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Gibson rendition and torture inquiry has been scrapped

18 January 2012 by

Canned

1 Crown Office Row’s Philippa Whipple QC was leading counsel to the Gibson Inquiry. She is not the writer of this post

 The Justice Secretary has told Parliament that the Gibson Inquiry tasked with considering whether Britain was “implicated in the improper treatment of detainees, held by other countries, that may have occurred in the aftermath of 9/11” has been scrapped.

Ken Clarke announced that the police investigations into rendition, which were always to come before the formal start of the inquiry’s hearings, would take so long that the current inquiry could not continue. He said the Government remained committed to a judge-led inquiry, but presumably the current inquiry team could not be kept twiddling their collective thumbs for years longer.

The Crown Prosecution Service announced last week that it would not be bringing charges in relation to some of the historic allegations – particularly in relation to Binyam Mohammed and a 2002 incident at Bagram Air Base in Afghanistan. It would, however, begin to investigate more recent allegations in relation to Libya and “a number of further specific allegations of ill-treatment“. 
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Strasbourg: L’enfant terrible

18 January 2012 by

A bit like news of a wayward celebrity, judgments from the European Court of Human Rights are now awaited with a mixture of trepidation and excitement. Whatever are those crazy unelected judges going to do next? Will this be the latest “Judgment day” for the enfant terrible of Strasbourg?

Yesterday the court released three judgments involving the United Kingdom. All three were about controversial issues: extradition, murder sentencing and terrorist deportation. The UK triumphed in the first two but failed in the third, although for surprising reasons. None of the judgments are “final”, in that the parties can still attempt an appeal to the court’s Grand Chamber if they wish. The rulings were:

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UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually

12 January 2012 by

It is rightly said that 95% of statistics are made up. Today’s Daily Mail front page headline contained a typically exuberant statistical claim: Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals. According to journalist James Slack “Unelected Euro judges” are mounting a “relentless attack on British laws laid down over centuries by Parliament”.

The Telegraph’s Andrew Hough and Tom Whitehead chime in with Britain loses 3 in 4 cases at human rights court. But are they right? To add a bit of spice to this statistical journey, I will aim to use at least one analogy involving a popular TV singing contest.

The “explosive research” is a report by Robert Broadhurst, a Parliamentary legal researcher for a group of Conservative MPs. The headline grabbing figures are in this paragraph:

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Is internet access a human right?

11 January 2012 by

A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.  

Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.

But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-calledfather of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:

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Extension of secret hearings would be “fundamentally unfair”, say Special Advocates

5 January 2012 by

Government proposals to increase the number of court hearings held in secret, and in which parties can only see minimal evidence relied upon by the court, have been severely criticised by the “Special Advocates” who play the central role in closed hearings.

The group of 57 barristers, including 19 Queen’s Counsel, argue that despite attempts, for example, to give those subject to “Closed Material Procedures” a summary of the evidence against them, they remain “fundamentally unfair” and

represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own.

The document is a response  to the Government’s Consultation (see my and Angus McCullough QC’s previous posts) which have to be sent via email or post by tomorrow, Friday 6 January 2012. I will be collating summaries of responses as I did with the Bill of Rights Commission consultation. If you would like your response to be included, please send it to 1crownofficerow@gmail.com, with the subject “Consultation response”.

In summary, the special advocates argue:

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