By: Martin Downs


Authorising unregistered care and deprivation of liberty — Martin Downs

5 August 2021 by

Inside the Supreme Court

Legislatures in London and Cardiff have long ago established the most detailed safeguards and systems of registration to protect young people placed in children’s homes – most especially where that involves depriving them of their liberty. At the same time, the administrations in both capitals have presided over a situation whereby there is a significant shortage of such registered accommodation. This has tended to provoke expressions of outrage by the Judiciary.

One of these problem cases has reached the Supreme Court (T (A Child), Re [2021] UKSC 35). In his Judgment, Lord Stephens referred to the

enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation. These unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property. This scandalous lack of provision leads to applications to the court under its inherent jurisdiction to authorise the deprivation of a child’s liberty in a children’s home which has not been registered, there being no other available or suitable accommodation.

The case of Re T itself is curious in that the Appellants (acting on behalf of the young person who was the subject of a High Court authorisation under the inherent jurisdiction) appear to have pursued an appeal on arguments that were not live at the relevant points below. Nevertheless, the Supreme Court was prepared to entertain argument as to whether it is a permissible exercise of the High Court’s inherent jurisdiction to authorise a local authority to deprive a child of his or her liberty despite the restrictions placed on such applications in the Children Act 1989 and the fact that that the Act created a detailed scheme for secure accommodation orders in Section 25.

How startling the problem is can be gleaned from the fact that the Supreme Court concluded that the inherent jurisdiction could be used to approve the placement of a young person in an unregistered children’s home – despite the fact that those who are running the home may be committing a criminal offence (contrary to section 11 of the Care Standards Act 2000). The Court concluded that this did not relieve the Court from taking the positive operational step of placing a child in such a placement in order to discharge its positive duties under Article 2 & 3 where “there is absolutely no alternative” (a quote that may lead to future difficulties of its own – as with the similarly telling phrase by Baroness Hale, “nothing else will do” in the field of non-consensual adoption).


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Our first Blogcast: India and the Rule of Law

8 March 2021 by

india rule of law blogcast

The UK Human Rights Blog doesn’t write about itself. There is too much of interest in the law of Human Rights to cover and the Blog has been providing this service ever since 1998 when Rosalind English and others started the Human Rights Update. With the know-how and energy of Adam Wagner, this developed into a Blog and last year, under Commissioning Editor, Jonathan Metzer (with the assistance of a small army of contributors), it attracted about 1.1 million visits from readers. In 2017 Rosalind launched LawPodUK to complement the blog, bringing the made for Podcasting voice of Emma Louise-Fenelon to thousands of listeners.

At this time of year, the Blog would normally be preparing for its annual party to thank its contributors. For obvious reasons, this is impossible this year and we decided it would be interesting to organise an online seminar instead. Is a Blogcast a thing?

We wanted to talk about the Rule of Law. Liberated by the earthly constraints of distance and time zones, we thought it would be interesting to bring together three stellar academics to discuss it from an Indian perspective. Joining us from Delhi will be Dr Shruti Kapila (Corpus Christi College, Cambridge), from Oxford, Professor Tarunabh Khaitan – and from our own neighbourhood, Dr Mukulika Banerjee (LSE). You are invited to join us, and we would welcome your contributions (message us or leave a comment below with your questions and thoughts). The Bar Human Rights Committee has been active in this area and we are very pleased its Chair, Schona Jolly QC, has accepted our invitation to take part too. The discussion will be facilitated by Marina Wheeler QC who has written recently about this subject.

It is irresistible to recall that at the time that the Blog was starting out its life, the BJP had secured a major victory when Atal Bihari Vajpayee became the first BJP Prime Minister of India to hold office for a sustained period (he was previously PM for 13 days in 1996). Over three terms, he was to serve over six years in Office – a party record that was surpassed by the current incumbent Narendra Modi in 2020. However, this does not begin to describe the transformation of the Indian polity – most especially after the saffron wave that broke over India in the 2019 general election.

In his seminal article, “Killing a constitution with a thousand cuts: executive aggrandizement and party-state fusion in India,” (2020) 14 Law & Ethics of Human Rights 49, Professor Tarunabh Khaitan examined various steps taken in the Modi first term and concluded that the approach of the administration was undermining all strands of institutional accountability in a way that was, “subtle, indirect, and incremental, but also systemic” and coined the phrase, “killing a constitution by a thousand cuts.”

If anything, Narendra Modi’s second term as PM appears to show signs of a quickening of progress in a crusade to transform India, as Dr Kapila explored in a piece in the FT last year: The annihilation of India’s political opposition is almost complete. For an outsider, perhaps the most startling of the developments was the revocation of the statehood of Jammu and Kashmir and its bifurcation and demotion into two Union Territories – all the while accompanied by the detention of the democratic leadership of the state and the suppression of most forms of communication. The Citizenship Amendment Act was reintroduced and sweeping reforms made of agricultural support – both of these steps provoked widespread protests. The latter was met with repression – with opposition being characterised as “anti-national.” The US organisation, Freedom House has recently downgraded the status of India from “Free” to “Partly Free” in its 2021 annual global survey.

The response of the Courts has been muted. One of the reasons for this is that the rate of High Court Judge vacancies has been allowed to hover around the 40% mark for some years with a consequent impact on the effectiveness of the Courts. This tends to create a culture of impunity.

This might all be thought to be a surprising development in the world’s largest democracy with a sophisticated constitution – whose moving spirit, Dr Ambedkar is honoured by statues all over India and by many monuments in the UK – including a portrait in Gray’s Inn – a development examined by Dr Banerjee in the Sunday Times, Modi parades his hatred of Muslims — and makes a mockery of India’s constitution. It is important to recognise that Indian governing norms have been assaulted before – the most striking being during the period of the Emergency (1975-1977) and the misuse of the powers of Governors to subvert state governments is nearly as old as the Constitution itself. The question may be asked as to what extent all this is a product of a tension when an administration with a substantial mandate seeks to bring about change in a country. Are recent developments just an upsurge of majoritarianism or is India witnessing the degrading of constitutional norms and a fundamental assault on the rule of law?

Come join us, explore these questions, and offer your view about how might we respond. RSVP via Eventbrite here.

The event will also be recorded and available on request.

To listen to more discussion on Human Rights, our podcast Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer  or wherever you listen to our podcasts.

Pride, Protest and Litigation – American gifts to LGBT Britain

9 July 2019 by

London has just experienced its largest ever celebration of Pride – arranged for the weekend after the 50th anniversary of the Stonewall Riots so as to allow thousands of British people to fly out to New York to participate in the official commemoration. This is a striking example of the influence of a particularly American method of effecting social change adopted with much success in the UK – albeit there has not been much by way of rioting here.

It is probably a myth that the Stonewall riots were fuelled by mourners drinking to relieve their grief after Judy Garland’s death in London and funeral in New York City – but possibly the closest the UK came to watching similar scenes was 25 years later and was connected to the death of the artist and Outrage supporter, Derek Jarman. Peter Tatchell arranged a candlelit vigil outside the Houses of Parliament on 21st February 1994 to mark the death of the great film maker. The other purpose of this gathering was to enable a demonstration to take place right outside the Palace of Westminster just as the Commons were voting on establishing an equal age of consent. When Parliament voted for a compromise of 18 years of age, the 5,000 or so demonstrators invaded the grounds of the Palace and Police and Commons staff struggled to close the great doors of Parliament to keep them out.


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The Government in a bind?

18 December 2018 by

Martin Downs is a barrister at One Crown Office Row.

Once again, the holding of a referendum is being discussed as the potential solution to a Party and Parliamentary impasse. 

Theresa May’s dilemma is that she has reached an agreement with the European Union about the terms of the UK’s withdrawal from the European Union but it is reported that even the Cabinet do not believe it will command a majority of the House of Commons

A number of politicians and commentators have argued that a potential way through this thicket is to call a further referendum. 

This leaves open the question – what type of referendum should there be?


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Equality won’t wait – Supreme Court rules in Equal Civil Partnership

28 June 2018 by

Civil-partnership-sign-495x495As predicted on this Blog, the Supreme Court has made a declaration of incompatibility covering sections one and three of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership).

In Steinfeld and Keidan, R (on the application of) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32 (27 June 2018) the Court found that the provision was contrary to article 14 of ECHR taken in conjunction with article 8 of the Convention.

To an extent, this was not a surprise as, by the time the case reached the Supreme Court, the government had conceded that the current situation in which same sex couples have had a choice between marriage and civil partnership since 13th March 2014, whereas heterosexual couples only have the option of marriage, is discriminatory.

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The ‘straight civil partnership’ challenge: All you need to know before the Supreme Court Judgment

25 June 2018 by

supreme courtThe Supreme Court will hand down Judgment on Wednesday 27th June 2018 in R (on the application of Steinfeld and another) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary).

The claimants are Rebecca Steinfeld and Charles Keidan who contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. They do not want to enter into marriage as they say that it is patriarchal and is not consistent with their values.

The Civil Partnership Act 2004 created a regime for the recognition of same sex relationships modelled on that in Vermont which pretty much entirely replicated the rights and responsibilities available through marriage. One of the only anomalies was a less favourable provision for survivor benefits from an occupational pension but even that was equalised courtesy of the Supreme Court in Walker v Innospec Ltd.

The exclusion of different sex couples from Civil Partnership started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of that was that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

This Blog has covered the story of the Steinfeld from the very beginning. The original hearing was in front of Mrs Justice Andrews and the arguments were examined by Professor Rob Wintemute in these pages. Ultimately, as reported by Adam Wagner, Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

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Should civil partnerships only be available to same sex couples?

13 May 2018 by

Following on from the UK Supreme Court’s special session in Belfast hearing the “Gay Cake” case, the Court now gathers in London to hear oral arguments in the Equal Love litigation whose factual origins are somewhat closer to Parliament Square in more ways than one.

Rebecca Steinfeld and Charles Keidan contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. This exclusion started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of this is that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.

What then is to be the future of the status of Civil Partnership created in 2004 (and covering the whole of the UK)? Most countries, upon enacting, same sex marriage abolished civil partnership schemes or barred new entrants to their schemes (like the Republic of Ireland). A few countries like the Netherlands, where civil partnership regimes are open to different sex couples as well, left couples with a choice of arrangements. Uniquely England, Wales and Scotland have (at present) left in place a situation in which same sex couples can choose between Civil Partnership and marriage but different sex couples only have the latter available to them.
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Police Anti-terrorism “Lead” calls for children to be protected from terrorist parents on a par with paedophilia

1 March 2018 by

A speech by Mark Rowley (the outgoing Assistant Commissioner of the Metropolitan Police for Specialist Operations and National Lead for Counter Terrorism Policing) to Policy Exchange has been given the front page treatment with headlines like, “Extremists should lose access to their children.” The speech has been made available in full by the Policy Exchange on their website and on Youtube.

Additionally, The Times quotes Mark Rowley as saying, in response to questions from the press in advance of the speech,

We still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children.

If you know parents are interested in sex with children, or if you know parents believe that people of their faith or their belief should hate everybody else and corrupt children for it, for me those are equally wicked environments to expose children to.

The speech is phrased more tentatively but included this passage,

The family courts and social services now routinely wrestle with child protection and safeguarding cases arising out of terrorism and extremism. However, we still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children. I wonder if we need more parity between protecting children from paedophile and terrorist parents.

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Northern Ireland Court of Appeal to consider same-sex marriage challenge

25 February 2018 by

The Court of Appeal in Northern Ireland will sit this week to consider an appeal against the refusal of the High Court to give recognition to the marriage of a gay man from Northern Ireland who had married his husband in London under the Marriage (Same Sex Couples) Act 2013. The original decision by Mr Justice O’Hara was published last August and reported as Re X [2017] NIFam 12. Under the terms of the 2013 Act, same sex marriage in England and Wales is treated for the purposes of the law of Northern Ireland as a civil partnership (in accordance with the Civil Partnership Act 2004). The Petitioner wants recognition of his marriage as such and argues that the denial of recognition is a breach of his Convention Rights.

When civil partnerships were being introduced for England, Wales and Scotland, Northern Ireland was going through one of its periods of direct rule from London. The UK government embarked upon a lightning consultation exercise and subsequently decided to include Northern Ireland in what came to be the Civil Partnership Act 2004. That meant that civil partnership was a UK wide arrangement. In fact, by a quirk of the law, the first civil partnership ceremony in the UK took place in Belfast, between Shannon Sickles and Grainne Close (who have also been refused a High Court Declaration that they can get married in the North). 
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EU Law provides Pension Equality

18 July 2017 by

Image result for uk supreme courtEU Equality law had its moment in the sun in the week after London Pride with the UK Supreme Court Judgment in the case of Walker v Innospecalbeit that the front page treatment in The Metro was not exactly the same as that in The Telegraph.

Many commentators had feared that the ECJ decision in David Parris v Trinity College Dublin would  be a problem but Professor Rob Wintemute argued in this Blog earlier this year that it could be distinguished – and he was proved right. He also had quite a big walk on role in Supreme Court Judgment (see below).
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From England (to Northern Ireland) with love

8 November 2015 by

northern-ireland-flagThe High Court in Belfast will sit on Monday 9 and 10th November to hear a challenge by a same sex couple now living in Northern Ireland who seek recognition of their English marriage. The current legal dispensation in the Province is that an English same sex marriage is recognised as a civil partnership in Northern Ireland.

The Petition is resisted by the Attorney General and government of Northern Ireland and the (UK) Government Equalities Office (which reports to Nicky Morgan, the Minister for Women and Equalities). It is anticipated that Judgment will be reserved.
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The consequences of Ireland’s Vote for Equality

31 May 2015 by

CFuJJAyXIAAMQIdLast week the people of the Republic of Ireland voted in a referendum to amend its constitution to allow marriage by two persons “without distinction as to their sex” by 62 – 38%.

The exuberance of the moment was captured by a tweet from the Irish Minister of State for Equality, Aodhán Ó Ríordáin TD stating, “Ireland hasn’t just said “Yes” Ireland has said “F❤CK YEAAHHHH”

The media was awash with celebratory images. Prominent in these were two Irish Senators who played their part by bringing test cases. Decriminalisation had only come about in Ireland in 1993 after Senator David Norris had challenged the previous discriminatory law in the European Court of Human Rights and won (in 1998) with the assistance of his Counsel, then Senator and subsequently President Mary Robinson.

The recognition of same sex partnerships in Ireland really came to prominence when Senator Katherine Zappone sought recognition of her Canadian marriage (with Ann Louise Gilligan) within the tax system. The High Court ruled that the constitution defined marriage as being between a man and a woman and the stage was set for battle to commence. In the meantime the government had started to take evasive action and defined marriage in the Civil Registration Act 2004 as being between a man and a woman (it was previously undefined). This was the year that the UK Parliament passed the Civil Partnership Act – which covered Northern Ireland. In 1998 the Irish Government in the Belfast Agreement committed to bringing,

measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

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Spiritual Injury voids Mayor’s Election

3 May 2015 by

0BCCE818000005DC-3052100-image-m-33_1429813413592Erlam et al v. Rahman et al, Richard Mawrey QC, April 2015, judgment here

The Guardian has reported that Lutfur Rahman, the former directly elected mayor of Tower Hamlets is “exploring the possibility” of judicially reviewing the judgment of the Election Commissioner, Richard Mawrey QC declaring his 2014 election void and barring him from standing in the mandated repeat of the poll.

The only surprise is the qualified nature of the statement as his website had already announced his decision to appeal two days before. This site also directs readers to a petition which describes the case as, “a politically-charged stitch up and an anti-democratic coup.” The Guardian quotes the Head of the Tower Hamlets branch of UNITE as describing the judgment as “an undemocratic assault on the people of Tower Hamlets” which was both “racist” and “Islamophobic”.

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Appointment to the bench is not a licence for judges to be gratuitously rude to those appearing before them

1 February 2015 by

helmet3The target of this barb was the case management style of HHJ Dodds. The author, one of three Judges of Appeal empanelled in Re A (Children) [29 January 2015] (we will have to await a full judgment to discover which as – so far – only a Lawtel summary is available).

HHJ Dodds is well known to readers of this blog. His style of case management was also analysed (and found wanting) by the Court of Appeal the following day in Re S-W (children) [2015] EWCA Civ 27 (30 January 2015). The judgments leave one to ponder whether these cases are a product of the stresses that have emerged from the greater expectations now put on the shoulders of judges to case manage litigation or whether, as previously discussed in this blog by David Hart QC here, it is a problem that arises with clever judges who find that they are, by temperament, not inclined to listen patiently to other people (generally considered to be a core part of the job description).

In Re S-W (children), HHJ Dodds made final care orders concerning three children at a hearing designated for case management less than three weeks after the application was made. The Court of Appeal overturned the orders (no party supported the judge’s actions) deeming care proceedings to be inapt for summary judgment in all but the most exceptional of circumstances (e.g. consent). Amongst the enumerated problems were that, the father of one of the children had not been served with notice of the proceedings, the children’s Guardian had not seen the children and there were no final care plans before the court. The judge did not even give a reasoned judgment. The Court of Appeal had to look at the transcript instead. This revealed that the judge had made his settled (and trenchantly expressed) view known within minutes of the hearing commencing. According to the court,

All the parties crumbled under the judge’s caustically expressed views.

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Birmingham’s Grooming Injunctions: what does the judgment say?

24 December 2014 by

Photo credit: guardian.co.uk

Photo credit: guardian.co.uk

Using the inherent jurisdiction against Child Sexual Exploitation: Birmingham City Council v Riaz & Ors15 December 2014, read judgment

As prefigured on this Blog here, Keehan J has handed down a public Judgment  explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.

The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.

Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.

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