Category: In the news
31 May 2015 by Martin Downs
Last 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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28 May 2015 by Kate Beattie
Join 1COR and JUSTICE on Thursday 4 June 5.00-7.30pm in central London to discuss public law in an age of austerity.
Topics include:
- introduction to Public Law: Judicial Review Principles, Procedure and Funding
- Human Rights in an Age of Austerity – Moving towards a British Bill of Rights?
- Breakout sessions
- Panel discussion on the Future of Public Law in an Age of Austerity – Speakers include The Rt Hon Sir Stanley Burnton.
This seminar is designed for solicitors (whether in private practice or in-house) and those working in the civil justice and human rights sector.
Follow this link to the full programme: 4 June programme.
Places are free but you must register by emailing lisa.pavlovsky@1cor.com. When replying please state your preference for the break-out sessions.
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22 May 2015 by Guest Contributor
Sajid Javid’s reported objections to the Government’s pre-election proposals on countering extremist ideas uncover just how controversial the new laws will be. He had objected, it seems, to a mooted expansion of Ofcom’s powers to take pre-emptive action to prevent the broadcast of programmes with ‘extremist content’ before they are transmitted.
That specific proposal may no longer be part of the proposed laws, but Ofcom is likely to be given powers to move against broadcasters after transmission. And there will be plenty else to discuss when the legislation is likely announced in the Queen’s Speech next week.
The main points have already been revealed when last week the Prime Minister and the Home Secretary announced that new laws will be introduced ‘to make it much harder for people to promote dangerous extremist views in our communities.’ As always in counter-terrorism laws, the relationship between freedom and security will be brought into sharp focus when the proposals are debated. In this piece we set down some of the questions which we think warrant attention.
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22 May 2015 by Guest Contributor
Constitutional Futures 2015 – 2025 – a vignette, and comment
January 1, 2025
As the first day of 2025 dawns the people of the Kingdom of England wake looking forward to the arrival of their new passports, issued by the United States of… America. Governor Farage’s message is unusually sober, encouraging, almost apologetic:
While we had hoped to make our future with the Commonwealth, despite our best efforts, and the tireless advocacy of the Royal Family, we must acknowledge that our former friends are content with their lives and more local partners. We thank Her Majesty, and her family, for their service. We wish them well with their continued public service in Scotland, Canada and elsewhere.
While the bargain our NAFTA partners have struck is a bracing one, it is one which I believe we can live with, and indeed thrive under. As the fifty-first state, the first to join since Hawaii in 1959, we rejoin friends older than the New Zealanders, Australians, Canadians; we go back to our shared Mayflower roots.
President Clinton assures me that she expects Baroness Hale to be confirmed to the Supreme Court. I’m sure she will do great work weaving British principles into our new shared constitution.
With representatives in the House, and Senators Cameron and Umuna in the Senate, we can look forward to a prosperous future as a new and vital part of a nation we can claim have been with, in some ways, since it began.
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22 May 2015 by Adam Wagner
These are difficult times for bringing public interest legal cases. The withdrawal of legal aid from many areas has meant that it has become a lot more difficult to fund cases. And the lawyers who are the experts in this kind of litigation are finding it harder and harder to keep practising in the area.
So bravo to a new initiative, CrowdJustice, a crowdfunding platform for public interest litigation. For those who don’t know about crowdfunding, it has been a huge success for other kinds of projects through sites like Kickstarter and Indiegogo. CrowdJustice is already fundraising for its first case, Torres v BP and Others, and there is a nice video on the site which has been cross posted by The Guardian.
Crowdfunding isn’t going to replace Legal Aid, nor is it going to become the main or perhaps even a major source of public interest litigation funding. But in cases that interest the public (is that the same as public interest?), it could become a really important resource. In the age of social media, a cleverly pitched campaign can raise a decent amount of money quickly. And wouldn’t it be interesting if someone could figure out a way of building a kind of crowd funded conditional fee agreement, whereby people get back their money or even a share of the damages if the case is successful?
Good for CrowdJustice – go to the site, share, and if you want to, contribute!
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20 May 2015 by Rosalind English
ABC v St George’s Healthcare NHS Trust and others [2015] EWHC 139, Nicol J – read judgment
Philip Havers QC and Hannah Noyce, and Elizabeth-Anne Gumbel Q.C. and Henry Witcomb of Crown Office Row represented the defendants and claimant respectively in this case. None of them have had anything to do with the writing of this post.
I have blogged before on the Pandora’s box of ethical problems and dilemmas emerging out of our increasing understanding of genetic disorders (see here, here and here), and here is a case that encompasses some of the most difficult of them.
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19 May 2015 by Guest Contributor
It’s time to tell the untold story of the Human Rights Act.
With the post-election dust barely settled, the Human Rights Act is firmly in the Conservatives’ sights. Caught in the crosshairs is section 2 HRA, which requires UK courts to take into account, but not necessarily follow, the case law of the European Court of Human Rights.
Also under fire is Article 46 of the European Convention, which makes Strasbourg judgments against the UK binding upon it in international law. This much is clear from the ‘Grayling paper’ of October 2014, the Conservative manifesto, remarks made by Lord Faulks in the pre-election Justice debate (analysed here by Mark Elliott), and post-election comments by David Cameron.
Absent from this debate is the fate of other provisions of the HRA, among them section 6, which requires public authorities to act compatibly with Convention rights unless primary legislation requires otherwise, together with remedies for breach provided for in sections 7 and 8.
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17 May 2015 by acwessely
In the news
“We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:
So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.
Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”).
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15 May 2015 by Guest Contributor
On 24 March, The Dickson Poon School of Law, King’s College London hosted a public debate on ‘The Human Rights Act: the Bill of Rights for the 21st Century?’ at Inner Temple. The panellists were Dr Colm O’Cinneide, Mr Martin Howe QC, Lord Phillips of Worth Matravers, and Mr John Wadham. Professor Aileen McColgan chaired.
Lord Phillips began by reminding us that King John never intended to respect Magna Carta, and that its most iconic sections were not the most prominent in the original document. He went on to point out that the UK’s ‘motive in participating’ in the European Convention of Human Rights ‘was the belief that other members of the Council of Europe should be under the obligations that it imposed.’ A ‘groundswell of dissatisfaction’ with the working of the Convention had led to critics portraying the Human Rights Act today – rather like Magna Carta in its infancy — as a disturbance to an historical order. The British Bill of Rights now proposed by the Conservative Party was
intended, as I understand it, to give the Supreme Court, rather than the Strasbourg Court, the last word in the correct interpretation of the Human Rights Convention. I have yet to see a draft of this; but in principle I am not in favour…Under the scheme of the Convention it is ultimately for the Strasbourg court to give authoritative rulings on its effect. I emphasise the word “ultimately”. Before according the Strasbourg Court that last word, there is room for dialogue.
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11 May 2015 by Rosalind English
H & S (Surrogacy Arrangement) EWFC 36, 30 April 2015
M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post. Read judgment here
H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life. It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place.
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11 May 2015 by Hannah Lynes
Photo Credit: The Telegraph
In the news
‘The Conservative Party has won a majority and can implement its manifesto. The Human Rights Act will be scrapped,’ writes Colin Yeo for the Free Movement blog. Such an outcome might not be a foregone conclusion, but Professor Mark Elliott is clear that ‘repeal of the HRA, the adoption of a British Bill of Rights and perhaps even withdrawal from the ECHR are now less unthinkable’.
Questions surrounding the content of the proposed Bill of Rights have therefore assumed increased urgency. A press release issued in October 2014 spoke of limiting the rights of illegal immigrants, travellers, victims of British military abuse and foreigners who commit crimes in the UK. Yet as UKHRB founder Adam Wagner notes, ‘only foreign criminals were mentioned in the manifesto, so it is all to play for.’
The HRA has failed to secure resilience in domestic politics. Benedict Douglas for the UK Constitutional Law blog attributes this failure to an absence in the Act of a ‘justification for rights possession in dignity or any other foundational human characteristic’. Mark Elliott points to the manner of its introduction: little effort was made ‘to engage the general public in what was perceived to be a political and legal elite’s pet project’.
Current discussions could thus present an opportunity, argues Adam Wagner for RightsInfo. A ‘Bill of Rights, done properly with real public involvement might help convince people that human rights are for all of us.’
For those looking to read more about human rights reform:
The Human Rights Act and a Question of Legitimacy – Barrister Austen Morgan considers the advantages of a British Bill of Rights for The Justice Gap.
What does a Conservative Government Mean for the Future of Human Rights in the UK? – Professor Mark Elliot puts together a useful list of recent posts he has written on Conservative plans for reform.
Other news:
- Michael Gove has been appointed Justice Secretary and Lord Chancellor in the post-election Cabinet. The Telegraph reports here.
- BBC: Two Syrian asylum seekers imprisoned for failing to provide passports have been successful in appealing their convictions.
- The High Court has ruled that a child should be brought up by her genetic father and his male partner, despite objections from the surrogate mother. The Guardian reports.
- The Justice Gap: The Uk Supreme Court has launched an on-demand video catch-up.
- Legal Voice: More than 8,000 lawyers are set to join the London Legal Walk to raise funds for the legal not-for-profit sector
- Mark Freedland and Jeremias Prassl express concerns over the impact and regulation of ‘zero-hours contracts’ for the Oxford Human Rights Hub.
In the courts
The case concerned the imposition of administrative fines on individuals who had been acquitted by the criminal courts of the same offence. The ECtHR found a violation of the right to a presumption of innocence (contra. Article 6 ECHR) and also the right not to be tried or punished twice (Article 4 of Protocol No.7).
UK HRB posts
Events
‘In Conversation with Sir Stephen Sedley’ – As part of LSE’s Legal Biography Project, Sir Ross Cranston will interview Sir Stephen Sedley on his life and career in the law. The event will be held on 19 May in the Wolfson Theatre, New Academic Building. More information can be found here.
If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com
Hannah Lynes
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9 May 2015 by David Hart KC
Bank Mellat v HM Treasury [2015] EWHC 1258 (Comm), Flaux J, 6 May 2015, read judgment
Two recent judgments underscoring the potential high cost of the UK getting it wrong in its dealing with businesses and hence being liable to pay damages under the Human Rights Act for breach of its A1P1 obligations. Regular readers will know that A1P1 is the ECHR right to peaceful enjoyment of property.
The first case was the photovoltaics case of Breyer, all about reducing renewables subsidies unfairly: see my post of last week here. The second, this case, involves a much more direct form of impact, namely the Treasury’s direction under the Counter-Terrorism Act 2008 that no-one else should have any commercial dealings with Bank Mellat, because, the Treasury said, the Bank had connections with Iran’s nuclear and ballistic missile programme.
Bank Mellat’s challenge got to the Supreme Court: see judgment and my post. The Court (a damn’d close run thing – 5:4) concluded that the direction was arbitrary and irrational and procedurally unfair. The nub of the complaint is that there were other Iranian banks against whom this very draconian measure was not taken, and that there was nothing specific about the Bank which made it more implicated than the rest of the banking system.
The Supreme Court remitted the case for trial as to HRA damages.
The current judgment of Flaux J is the first stage in that trial process. As we will see, Bank Mellat are distinct winners at this stage.
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7 May 2015 by David Hart KC
Midcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here
Out of what some may think to be an everyday spat between the Co-Op (existing supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.
A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.
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6 May 2015 by Adam Wagner
“Our aim is a straightforward one”, New Labour Party told us in October 1997 “[it is] to bring those rights home”. In 2000, the Human Rights Act came into force. For the first time, people in the UK had human rights which could be enforced in UK courts. The right to life, the right not to be tortured, to free speech. What was not to love?
If only it was that simple. 1997 seems a very long time ago. Now, in the final few hours before the 2015 Election, we see the major parties fundamentally divided on human rights.I haven’t written about the Election and human rights yet, mainly because I have been setting up a wonderful new human rights website, rightsinfo.org (more on that later).
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4 May 2015 by David Hart KC
Department of Energy and Climate Change v. Breyer Group plc and others [2015] EWCA Civ 408, 28 April 2015 read judgment
In 2011, DECC decided to change the rules about subsidies for photovoltaic schemes, and caused substantial losses to those who had contracted or were about to contract on the basis of the more generous old subsidies.
This is prime territory for a damages claim under A1P1 ECHR. The Court of Appeal has recently dismissed an appeal by DECC against a decision of Coulson J (see my post here) supportive of such claims. The decision was on preliminary issues involving assumed facts, but important legal arguments advanced by DECC were rejected by the CA.
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Last 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%.
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