Media By: Rosalind English

Wrongs and rights, more wrangles

28 April 2011 by

[Updated] When blogging about the Great Strasbourg Debate, Adam Wagner recently reflected that he and I are”good cop, bad cop”. No prizes for guessing who plays which role.

Anyway, for what it’s worth, here are a few pensées on the recent news that the Daily Telegraph is backing a reform campaign (see Adam’s post on this). Or rather, let’s start with Charles Darwin, who observed that the human animal is capable of continual extension in the objects of his “social instincts and sympathies” from the time when he had regard only for himself and his kin:

… later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellowmen’, [then] ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals.

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Admin court grabs bull by the horns

20 April 2011 by

R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.

An interesting ruling in the Administrative Court this week touches on some issues fundamental to public law – the extent to which “macro” policy (such as EC law) should trump principles of good administration; the role of factual evidence in judicial review proceedings, and the connection between public law wrongs and liability in tort.

It all started with Boxster the pedigree bull and notices issued by DEFRA which sealed his fate, or at least appeared to do so when his owners received them in April and July 2010. They were directed to arrange  the slaughter of the animal as a result of a positive bovine tuberculosis (bTB) test that had been carried out by DEFRA technicians earlier in the year. The notices of intended slaughter were issued under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981.
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DPP invites Ratcliffe defence team to appeal convictions

19 April 2011 by

Followers of the fall-out of the Ratcliffe on Soar affair will remember our post on the collapse on one of the prosecutions after the revelation of activities by an undercover police officer.

We speculated then whether we would ever know whether PC Kennedy’s conduct may have rendered the evidence obtained unfair. Now it seems we have the answer: the DPP has written to the representatives of the twenty protestors who were actually convicted of conspiracy to commit aggravated trespass to lodge an appeal against their conviction in December last year. 
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“Civil rights” in Strasbourg: development or dithering?

15 April 2011 by

In a very short judgment about asset freezing orders the Court of Appeal has made some tart observations about the inchoate nature of Strasbourg’s rulings. These will no doubt have a certain resonance given the current fervid discussion about the competence of that court.

It was all in the context of an apparently esoteric argument about the precise nature of judicial review proceedings and whether or not they are covered by the fair trial guarantees of Article 6. The respondents’ names been placed on a United Nations list of persons believed to be associated with terrorism. The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.
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‘Fairness’ in an unfair world

15 April 2011 by

Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin) – Read judgment

The Administrative Court has ruled that the employment of an army chaplain involves a “a special bond of trust and loyalty” between employee and state such that the full panoply of fair trial rights under Article 6 could not apply.

This interesting judgment by Nicol J provides an illuminating analysis of the role of Article 6 in military employment disputes, exploring the scope of the “civil rights” concept for the purposes of that provision, and the extent to which these kinds of disputes are excluded from its purview by Strasbourg case law.

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Prisoner votes: EU won’t help

13 April 2011 by

George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session [2011] CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion

This was an attempt by a prisoner to argue  that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but  his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention.
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Students, visas and the points system: difficulties in enforcement

12 April 2011 by

R(New London College) v Secretary of State for the Home Department  [2011] EWHC 856 (Admin) – read judgment

When she introduced the latest changes  to the points-based system for allowing entry into the United Kingdom the Home Secretary Theresa May said that “this package will stop the bogus students, studying meaningless courses at fake colleges…it will restore some sanity to our student visa system” (March 22 2011)
Whether these changes will alleviate any of the difficulties of applying the criteria to institutions that provide study courses for foreign nationals, only time will tell. This case illustrates some of these problems of enforcement.  

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Defamation the South African way

6 April 2011 by

Le Roux and others v Dey  (South African Constitutional Court) – read judgment

With the new libel reform proposals doing the consultation rounds it is enlightening to see how other jurisdictions strike the balance privacy and dignity on the one hand, and freedom of  expression on the other.

A recent case before the South African Constitutional Court raised two interesting issues: the extent to which liability for defamation should be reduced where children are concerned, and the question whether it should be actionable at all to refer to someone in terms of the condition protected by the Constitution – sexual orientation, for example.

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Happy first birthday!

31 March 2011 by

On 31st March a year ago our blog was launched and to celebrate our entry into a second glorious year we thought we’d take a look at what we’ve done that pleased you most.

As with all internet sites, there are no prizes for guessing why Should people with low IQs be banned from sex? comes out with almost the highest number of hits, and no doubt some of the visitors to that page would have gone away disappointed, but we promise it is a fine piece on a very interesting issue. And the high score achieved by our post Brititsh airways strike and human rights – the union strikes back has less to do with law than travellers’ anxieties about their scheduled flights.

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Expert witnesses no longer immune from being sued

30 March 2011 by

Jones v Kaney – read judgment/press summary. The Supreme Court has ruled that the an expert giving advice in the course of litigation is no longer immune from being sued in negligence.

This case,  which had been granted a “leap-frog certificate” to go straight from the Divisional Court to the Supreme Court, overturns a long-established principle that expert witnesses should be protected from legal action on the basis of public policy.  The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence)  contravenes the European Convention on Human Rights. The right to a fair trial under Article 6 impliedly entitles an individual, whose position in civil proceedings has been compromised by negligent advice, to take action against that expert to compensate for the damage caused.

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Purpose, policy and publication: Analysis of Lumba ruling

30 March 2011 by

Lumba v Secretary of State for the Home Deparment – a case of driving government policy further underground?

We have already reported on this appeal by three foreign nationals who have served sentences of imprisonment in this country (“FNPs”). They were detained pursuant to Schedule 3 of the Immigration Act 1971 and their challenge to the legality of this detention was successful. But the appeal was secured by a majority of 3 with strong dissenting opinions which merit close consideration here.

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Benefits tourism in the EU – Analysis

25 March 2011 by

The case of Patmainiece  v Secretary of State for Work and Pensions was reported in an earlier post.  Here we discuss the underlying rationale for the decision and ask whether the finding that the nationality requirement amounted to mere indirect discrimination was a correct “fit” with EU principles of free movement.

Article 18 (now article 21 TFEU) provides:

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States

However a different regime applies to non-economic actors as opposed to workers.  Free movement of workers is one of the fundamental underpinnings of the internal market on which the EU is based. The main EU Directives and Regulations giving effect to the right to free movement of workers are Regulation No 1612/68 on freedom of movement for workers within the Community (as amended by Directive 2004/38/EC) and Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the member states.  But the rights of those who are economically inactive to reside for more than three months in other member states is subject to certain conditions, set out in the 2004 Directive; they must

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Libel tourists beware – reform is on its way

16 March 2011 by

The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.

The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.

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Right to strike given a boost by Court of Appeal

8 March 2011 by

National Union of Rail, Maritime and Transport Workers v Serco (t/a Serco Docklands) [2011] EWCA Civ 226 – read judgment.

Aslef and RMT rail unions have succeeded in challenging injunctions that blocked their strike action over small faults in procedure.

The Court of Appeal has ruled that minor mistakes in balloting  such as polling non-constituent workers – did not justify the injunctions that had prevented them from taking strike action. Trade union leaders have called the ruling a “major step for industrial freedom”.

Two strikes that were planned separately – by the RMT on London’s Docklands Light Railway and by Aslef on London Midland – were halted by injunctions in the High Court in December. The judge ruled that strike ballot procedures had not been properly followed and therefore the unions would be unlikely to claim the statutory protection for the action immunity under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt V. The Court of Appeal has decided that ruling was wrong in law.
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Analysis: the place of religion in foster care decisions

2 March 2011 by

Johns v Derby City Council and Equality and Human Rights Commission (intervening) [2011] EWHC 375 (Admin)- Read judgment

Religious views opposing homosexuality are a legitimate fostering concern and the local authority’s approach to this question did not constitute religious discrimination.

The claimant husband and wife applied to the defendant local authority to be approved as short-term, respite, foster carers.  They were members of the Pentecostalist Church and believed that sexual relations other than those within marriage between one man and one woman were morally wrong. The local authority considered that the claimants’ views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which required carers to value individuals equally and to promote diversity. The local authority’s Fostering Panel therefore deferred a decision.

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