By: Rosalind English
28 September 2010 by Rosalind English
A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.
Sixty years of human rights and it feels like they’ve been with us for ever. Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.
In Paul Simon’s words, there are
Too many people on the bus from the airport
Too many holes in the crust of the earth
The planet groans
Every time it registers another birth
People’s rights and aspirations, as set out in these pioneering aristocratic instruments, may have reached the end of their useful life.
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23 September 2010 by Rosalind English
Updated x 2 | Kay and Others v United Kingdom (European Court of Human Rights, 21st September) – Read judgment
The European Court of Human Rights has ruled that the UK violated the human rights of short-term tenants of council property whose leases had been terminated. The decision will not, however, prove much help to evicted tenants in similar situations in the future, although it should encourage courts to take their personal circumstances into account when deciding if they should be evicted.
The applicants were occupiers of housing units owned by Lambeth borough council under leases which had been provided by a charitable housing trust. Lambeth brought possession proceedings after the leases were terminated in 1999. The applicants complained that these proceedings breached their right to respect for private and home life under Article 8 (the right to a family life). They were unsuccessful before the domestic courts but the Strasbourg Court found a violation of Article 8, insofar as the applicants had been prevented from raising it as a defence.
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16 September 2010 by Rosalind English
In the ongoing row over France’s repatriation of Roma nationals there has been little debate over precisely what power the EU Commission has to initiate legal action against the French government.
Viviane Reding, the EU Justice Commissioner, is widely reported to have declared that France faces possible infringement proceedings and a fine from the European Court of Justice in respect of its dismantling of Roma camps and repatriation of up to a thousand Bulgarian and Romanian Roma citizens since last month. It is suggested that the French government is guilty of applying the 2004 Directive of Free Movement of Persons in a “discriminatory” fashion, offending not only directive’s own provisions, but the European Treaty’s principle of non discrimination (Article 19) and also, possibly, the ban on collective expulsion of aliens under Protocol 4 Article 4 of the European Convention on Human Rights.
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10 September 2010 by Rosalind English
A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.
The Times reports today that Judge Virginia Philips found that the policy violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.
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4 August 2010 by Rosalind English
W(Algeria) and 7 Others v Secretary of State for the Home Department [2010] EWCA Civ 898 (Jacob LJ, Sullivan LJ and Sir David Keene) 29 July 2010 – read judgment
Article 6 of the Convention did not require an “irreducible minimum of information” that had to be provided to appellants in proceedings before the Special Immigration Appeals Commission about the risk they posed to national security.
In their appeal against decisions of the respondent secretary of state to deport them on grounds of national security (upheld by the Special Immigration Appeals Commission (SIAC)) the appellants all claimed that they would be at risk of ill-treatment if they were deported. They had obtained relevant information which had been provided on the understanding that it could only be made available if there were clear guarantees that it would not become known to their national government.
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19 July 2010 by Rosalind English
Ali Zaki Mousa and others v Secretary of State for Defence and Legal Services Commission 16 July 2010 – Read judgment
Permission has been given to around 100 Iraqi applicants to bring proceedings to compel the Secretary of State to hold a single public inquiry to investigate breaches of Article 3 in relation to each of the claimants with respect to their treatment whilst in detention in Iraq
The claimant was representative of a group of Iraqis numbering about 100 who either have brought, or wish to bring, judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3. It is possible that up to 100 other Iraqis may wish to join the group in the future.
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16 July 2010 by Rosalind English
A (Appellant) v Essex County Council & National Autistic Society (Intervener) [2010] UKSC 33
Supreme Court (Lord Phillips, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke) July 14 2010
The right to education under Article 2 Protocol 1 of the Convention was not breached by the delay in catering for the special educational needs of a child. Convention rights must be intepreted pragmatically; it is not right to equate a failure to provide the educational facilities required by domestic law with a denial of access to education.
This was an appeal against a decision ([2008] EWCA Civ 364, [2008] H.R.L.R. 31) upholding the dismissal by summary judgment of the appellant’s claim that the respondent local authority had breached his right to education under A1P1.
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13 July 2010 by Rosalind English
R (on the application of S) (Claimant) v Secretary of State for the Home Department (Defendant) & (1) Amnesty International & AIRE Centre (2) United Nations High Commissioner for Refugees (Interveners) (2010) – Read judgment
The Court of Appeal has ruled that the EU Charter of Fundamental Rights (“the Charter”) could be directly relied on in the UK in a decision on the removal of an Afghan asylum seeker to Greece.
This Charter combines the rights guaranteed by the European Convention on Human Rights and Freedoms 1950 (“ECHR”) with the fundamental social rights set forth in the European Social Charter and in the Community Charter of Fundamental Social Rights of Employees. The decision could see the introduction of “social and economic” rights into the UK for the first time, but it could also place an unmanageable burden on member states to comply with the wide-ranging charter.
A reference to the European Court of Justice will now be made in respect of the application of the Charter in the context of return of asylum seekers to Greece under the Dublin Regulation. The Regulation is the cornerstone of EU refugee law, establishing a system of determining responsibility for examining asylum claims and ensuring that each claim is examined by one Member State rather than allowing multiple applications for asylum submitted by the same person in several Member States with the sole aim of extending their stay in the EU.
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9 July 2010 by Rosalind English
In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.
We posted earlier on the case of HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010), in which the Supreme Court ruled as unlawful the government’s policy of sending refugees back to their home countries because they could avoid persecution if they acted discreetly.
There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.
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6 July 2010 by Rosalind English
The Master of the Rolls Lord Neuberger has given the first lecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.
At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that
will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles.
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3 July 2010 by Rosalind English
Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166
CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment
A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.
The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.
The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.
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30 June 2010 by Rosalind English
The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment
In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –
The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”.
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29 June 2010 by Rosalind English
Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010
AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment
We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
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28 June 2010 by Rosalind English
Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010
A person who had acquired a different gender was entitled under European law to obtain the legal rights, such as an earlier pension, associated with the acquired gender – read judgment
The appellant had undergone male to female reassignment surgery. In 2002 she applied for a state pension, to be backdated to her sixtieth birthday. The Secretary of State decided that she was only entitled to a state pension from her 65th birthday. On appeal to the tribunal it was found that she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004 (“the GRA”) and therefore she was not entitled to legal recognition of her new gender. As a consequence she could not qualify for a state pension from the age of 60. Prior to the Act, the United Kingdom had failed to implement Equal Treatment Directive 79/7/EEC to ensure that any national laws, contrary to the principle of equal treatment, were abolished. The Upper Tribunal rejected her appeal finding that she did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7.
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25 June 2010 by Rosalind English
Wikileaks founder Julian Assange, who has been on the run from the US authorities after being linked to a serious US national security breach, has come out of hiding in Belgium.
The Telegraph
reports that trouble started for Assange after a US intelligence analyst bragged about sending 260,000 confidential state department cables about the wars in Afghanistan and Iraq to the online whistleblower website. Washington tried to stop the classified information being posted online by arresting the analyst, Bradley Manning. Amid reports that he was the target of a US military manhunt, Mr Assange went to ground for one month.
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