Category: In the news
8 April 2013 by David Hart KC
Last Friday, 5 April, saw a break-through in negotiations as to how the EU is to accede to the ECHR – see the Draft Agreement on Accession of the European Union to the European Convention on Human Rights. There has been a lot of speculation (e.g. my post of June 2012) about how the roles of the EU Court (the CJEU) and the Strasbourg Court might be fitted together. Now at least we have some of the proposed answers, though there are a number of formal steps to be undergone before it comes into law.
The move is a culmination of a process trailed as long ago as the 1970s, though kick-started more recently by Article 6 of the Lisbon Treaty of European Union. This entered into force in 2009, and says that the EU “shall” accede to the ECHR. Negotiations started in earnest in 2009/10, initially with negotiators from 14 Convention countries (7 in the EU, 7 ECHR but non-EU members) who met with members of the European Commission, and latterly involving all 47 Council of Europe countries. Those negotiators have now reached agreement.
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7 April 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
A relatively quiet week on the news front, with courts having a well-earned Easter break. Just a few items to focus on, with commentary appearing following the US Supreme Court’s oral hearing on the same-sex marriage. The Employment Tribunal has found that conference motions and debates surrounding Israeli boycotts do not constitute anti-Semitism; and assistance is out there for litigants in person following the enactment of LASPO.
by Daniel Isenberg
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6 April 2013 by Rosalind English
The Queen (on the application of Newhaven Port and Properties Limited (Respondent)) v East Sussex County Council (Appellant) and Newhaven Town Council (Interested Party) [2013] EWCA Civ 276 – read judgment
This is a tale of common law rights, open water swimming, and individual freedoms. It is about the flip side of codified human rights: the time-honoured principle, that that which is not specifically prohibited, is – or should be – permitted in English law.
Our current preoccupation with certain sorts of intolerance must not allow us to lose sight of another threat to our individual freedoms: the encroaching requirement that our use of wild spaces is subject to the permission of the public authority who happens to be vested with certain statutory power over the land in question. This ruling confirms, if it needed confirming, that “toleration” does not mean the same as “permission”. If we allow the one to collapse into the other, the inference will become widespread that use of such land is permissive by virtue of an implied licence, a licence which can be easily withdrawn at any time.
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6 April 2013 by David Hart KC
Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment
These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.
Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.
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4 April 2013 by Rosalind English
Raw and others v France – read judgment (only available in French)
This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.
Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her.
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4 April 2013 by Rosalind English
The Queen (on the Application of James Dowsett) v Secretary of State for Justice [2013] EWHC 687 (Admin) – read judgment
The secretary of state’s policy in respect of rub-down searches of prisoners, which allows cross-gender searches in the case of male prisoners but not for female prisoners, does not discriminate against male prisoners on grounds of sex.
Background
The claimant, who has been a serving prisoner since 1989, challenged Secretary of State’s policy made under section 47(1) of the Prison Act 1952. This is the policy on so-called “rub-down” searches and, in particular, the policy that a male prisoner cannot normally object to such searches conducted by a female prison officer other than when his case falls within the exceptions based on “religious” or “cultural” grounds (a cultural ground means an objection that arises from a sincerely and deeply held belief, so it is not clear how this ground differs from religion). In consequence, the claimant had been searched by female officers on many occasions. Current policy with regard to female prisoners was that they could only be searched by female staff.
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31 March 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The focus this week has been on the continuing Abu Qatada saga. The Home Secretary lost her appeal and for the time being, Abu Qatada will remain in the country. In other news, the Justice and Security Bill edges towards the finish line, discussion continues on whether the UK will be able to remain in the EU if they leave the ECHR and people are split on the proposed press regulation measures.
by Sarina Kidd
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26 March 2013 by Guest Contributor
Today we will see the beginning of the end of the passage of the Justice and Security Bill 
through Parliament: the process commonly known as parliamentary “ping-pong”.
The notion of a Bill being swatted back and forth across the Palace of Westminster is at its most accurate in the case of controversial legislation such as the “secret courts” Bill (see previous discussions of these controversies).
With allegations that ministers may have misled parliamentarians on the scope of their prized Bill, the picture of political game-playing might be apt. However, this is the last chance for parliament to consider the government’s case for the expansion of “closed material procedures” (CMP), where a party to proceedings and his lawyers (together with the public and the press) are excluded – and his interests represented by a publicly appointed security vetted lawyer, known as a Special Advocate. An analogy more serious than Boris’ “wiff-waff” might be needed for tonight’s debate. Some commentators have suggested the Lords will play “ping-pong with grenades”.
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25 March 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
There was a lot of reaction this week to the proposed Royal Charter on press regulation and the auxiliary legislation upon which it relies. Commentators are divided on whether the move will work or not, with most controversy surrounding the concept of a ‘relevant publisher’ and how this will affect small, online media. Meanwhile, the Supreme Court has declared that it does have the power to read closed judgments of courts below, and therefore could, too, issue closed judgments. Debate continues about the shape of human rights in the UK, especially after the next election; whilst the ECHR slowly evolves with a new protocol ready for ratification.
by Daniel Isenberg
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22 March 2013 by Adam Wagner
On 26 March 2013 the House of Lords will consider the amendments to the Justice and Security Bill made by the House of Commons. We have reported on this blog on the Bill at various points in its progress, including on the Special Advocates’ views on the proposals.
Here, now, is the latest contribution: a Briefing Note in relation to two key amendments which will be considered next week (covering letter here). First, whether closed material procedures should only be used as a last resort, if a fair trial cannot otherwise be achieved. And second, whether the interests of open justice should be weighed in the balance by a Court in considering whether to order a closed procedure.
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22 March 2013 by Guest Contributor
In May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge. The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes. It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities.
The Review has recently launched a call for evidence, with a closing date of 12th April 2013. The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’
The Equality and Diversity Forum has produced a helpful briefing on the Review.
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22 March 2013 by Rosalind English
R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013 [2013] EWCA Civ 199 – read judgment
Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.
In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants.
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22 March 2013 by Adam Wagner
It is always a pleasure to welcome a new legal blog, especially one with subject matter which is relevant to readers of the UKHRB. May I introduce you to the European Sanctions Blog, written by Brick Court’s Maya Lester and Michael O’Kane of Peters & Peters. The blog is also on Twitter as @eusanctions.
Sanctions imposed by European bodies on individuals, businesses and states are certainly topics which we have covered on this blog, for example the important recent rulings over EU sanctions on Iranian banks. A few interesting early posts over at EU Sanctions cover sanctions on Syria and Iran, terrorist asset freezing and most recently the extraordinary goings on at the Supreme Court this week in a case about an Iranian bank, Bank Mellat, which I also covered here.
Enjoy!
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21 March 2013 by Adam Wagner
1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post.
Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.
If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:
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20 March 2013 by David Hart KC
Hayes v. Willoughby, Supreme Court, 20 March 2013 – read judgment
Harassment is both a civil wrong and a crime. It is a statutory defence to both that the conduct “was pursued for the purpose of preventing or detecting crime” s.1(3) Protection of Harassment Act 1997. This decision grappled with the problem of the apparently honest but irrational harasser. Was he guilty or did this defence help him? In answering this, the Supreme Court looked at some basic concepts running through great swathes of the law, “purpose”, “subjective”, “objective”, “reasonableness” and, critically, “rationality” – so the case is one not simply for harassment lawyers to look at.
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