Media By: David Scott


No finding of discrimination for British Gurkha pension scheme

29 September 2016 by

Joanna-Lumley-and-Gurkha--003

British Gurkha Welfare Society and others v. The United Kingdom, Application no. 44818/11 – read the judgment here

The Court has rejected claims that the cut-off scheme for British Gurkha pensions was in violation of Article 14 in conjunction with Article 1 of Protocol 1, but leaves open space for future proceedings.

by David Scott

Background

The Gurkha have a long and storied history within the British Army. Originally serving in the (British) Indian Army, Gurkha regiments have remained within the British armed forces since 1815. More than 200,000 Gurkha soldiers fought in the two world wars, and in the past fifty years they have served in Hong Kong, Malaysia, Borneo, Cyprus, the Falklands, Kosovo, Iraq and Afghanistan.

Today these soldiers form the Brigade of Gurkhas, an administrative entity that ensures that Gurkha units are able to be integrated into the British Army. Since July 1997 the Brigade’s home base has been in the United Kingdom, due to the completion that year of the handover of Hong Kong – its previous home base – to China.

In October 2004 the Immigration Rules were changed to permit Gurkha soldiers who retired on or after 1 July 1997 with at least four years’ service to apply for settlement in the United Kingdom. Approximately 90 per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the UK with their qualifying dependants. A further amendment was introduced in May 2009, allowing former Gurkhas who had served in the British Army for at least four years to settle permanently in the UK. Approximately thirty-five per cent of those eligible have since applied for resettlement.
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A lift in a burning building? – Grand Chamber rules on terrorist Article 6 claims

19 September 2016 by

Ibralondon-bombings21him and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment here

The Grand Chamber has found a violation of Article 6(1) and 6(3)(c) in relation to one of the four applicants before it, partially overturning the earlier decision of the Chamber and providing much food for thought on the future of Article 6.

by David Scott. Many thanks to my colleagues at University of Zurich for comments on earlier drafts of this piece. Any mistakes are undoubtedly my own.

 
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No protection for Indy Camp under Articles 10 and 11

23 August 2016 by

q-icon-scottish-flag-3Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here

The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.

by David Scott

Background

Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called.  In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.

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Scottish Government’s Named Persons scheme incompatible with Article 8

29 July 2016 by

The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here

The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).

by David Scott

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Examination of child witnesses not in violation of Article 6

2 February 2016 by

blogimage1Mark William Patrick MacLennan v Her Majesty’s Advocate, [2015] HCJAC 128 – Read judgment

The High Court has refused an appeal under Article 6 on the lack of effective cross-examination of child witness, but has provided interesting commentary on how such investigations could be better handled in future to meet Strasbourg standards.

by David Scott

 The Facts

The original charge concerned reports made against the appellant, the manager at a nursery in Fort William, from children alleging various forms of sexual contact. After initial allegations, joint investigation interviews (JIIs) were conducted between May and July 2013 with various children from the nursery. The value of some of the interviews was questioned by the High Court, with one described as “leading in the extreme” (paragraph 5), yet none were challenged by the defendant when presented as evidence during his trial.
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Stop Powers under the Terrorism Act 2000 incompatible with Article 10

21 January 2016 by

David MirandaDavid Miranda -v- Secretary of State for the Home Department  [2016] EWCA Civ 6 – read judgment.

On Tuesday the Court of Appeal handed down its judgment on David Miranda’s detention under the Terrorism Act 2000 and, while upholding the lawfulness of the detention in the immediate case, ruled that the stop powers under Schedule 7 of the Terrorism Act lack sufficient legal safeguards to be in line with Article 10.

by David Scott

See RightsInfo’s coverage here. For our coverage of the High Court’s previous decision see here, and on his original detention here and here.

The Case

Mr Miranda, the spouse of then-Guardian journalist Glenn Greenwald, was stopped and detained by the Metropolitan Police at Heathrow Airport on 18 August 2013 under paragraph 2(1) of Schedule 7 of the Terrorism Act 2000. He was questioned and items in his possession were taken by police, including encrypted material provided by Edward Snowden. Mr Miranda was detained for nine hours, the maximum period permitted at the time (since reduced to six hours).
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Is the European Convention Working? Grieve advocates before Faculty of Advocates

25 September 2015 by

crop-dominic-grieve_39562a1Less than 48 hours before First Minister Nicola Sturgeon’s speech in Glasgow (see our coverage here), another rousing defence of the Convention was launched in Scotland. Former Attorney General Dominic Grieve addressed the Faculty of Advocates in Edinburgh on the 21st September, posing the question “Is the European Convention Working?”, and in reply giving an outstanding analysis of the reasons why the UK must remain within the Convention (full transcript available here).

by David Scott

In the interest of brevity, this post shall skim over the more “standard” defences of the Convention – highlighting the various historical “success stories”, the more serious situations in other states in comparison to the UK, the effective existing dialogue between domestic courts and Strasbourg, problems of EU membership and devolution agreements (of which we have previously discussed here) – and instead focus on the more interesting arguments he makes: namely, the important interactions between the international reputation of the UK and the authority of the Court.
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A Clash of Rights – Does the ECHR apply in Syria?

18 September 2015 by

drone_jpg_2504025bDoes the current jurisprudence on Article 1 of the ECHR create potential human rights problems in the Syrian conflict?

by David Scott

Reports of two British citizens killed by RAF drone strikes in Syria last week have thrown up a whole host of ethical and legal questions. Former Attorney General Dominic Grieve has already suggested the decision to launch the attack could be “legally reviewed or challenged”, while Defence Secretary Michael Fallon has made clear that the UK would not hesitate to launch such attacks in the future.

This post assesses the (European) human rights dimension of these targeted drone strikes, particularly in the wake of Al-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 (Admin). I must express gratitude to Dr Marko Milanovic, whose lectures at the Helsinki Summer Seminar and excellent posts on EJIL: Talk! greatly informed this post. Any mistakes are, of course, my own.
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Does Article 5 apply to extended sentences?

24 August 2015 by

Photo credit: Guardian

Photo credit: The Guardian

Brown v Parole Board for Scotland, [2015] CSIH 59 – read judgment

Scotland’s civil appeal court, the Inner House of the Court of Session, has refused a prisoner’s appeal for damages resulting from an alleged failure to afford him a reasonable opportunity to rehabilitate himself during his extended sentence.

by David Scott

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Scotland, Sewel, and the Human Rights Act

18 July 2015 by

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

by David Scott

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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