Category: In the news

Church has employer’s duty of liability for parish priests

16 July 2012 by Rosalind English

JEG v  The Trustees of the Portsmouth Roman Catholic Diocesan  [2012] EWCA Civ 938

Elizabeth Anne-Gumbel QCand Justin Levinson of One Crown Office Row acted for the claimant in this case. They did not write this post.

The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.

This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan – see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts.
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The conservative case for gay marriage

16 July 2012 by Adam Wagner

The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when Prime Minister David Cameron said “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.” 

What has been missing from the debate since that speech has been a convincing, measured discussion from the political right on what he meant. Until now, that is. Today the Policy Exchange, a leading conservative think tank thank, has published What’s In A Name? Is there a case for equal marriage? Don’t be fooled by the question mark in the title. This report represents the best and most carefully considered case for equal marriage from a conservative (with a small ‘c’) perspective so far.

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Locals’ Olympic missile site challenge rejected

13 July 2012 by David Hart KC

Harrow Community Support Ltd v. Secretary of State for Defence [2012] EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment

In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.

Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.

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No duty to snitch on another EU country’s asylum conditions

11 July 2012 by Rosalind English

Medhanye, R(on the application of ) v Secretary of State for the Home Department [2012] EWHC 1799 (Admin) (02 July 2012)  – read judgment

EU law is based on a central principle of mutual confidence. It therefore flies in the face of this trust to impose a legal duty on one member state to monitor whether another Member State was complying with its obligations under that law, including its obligation to respect fundamental human rights.

Background facts

The claimant, an Eritrean national, sought asylum in the UK, having previously claimed asylum in Italy. The secretary of state decided to remove him to Italy under Regulation 343/2003 (Dublin II). The claimant challenged the Secretary of State’s decision to certify as “clearly unfounded” his claim that removing him to Italy would breach his rights under the European Convention on Human Rights (“ECHR”). His application for judicial review was refused.
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Second time lucky? Bill of Rights Commission consults… again

11 July 2012 by Adam Wagner

Last year, the troubled Commission on a Bill of Rights consulted the public on whether the UK needed a new human rights instrument. Many, including me, commented that the consultation document was a little sparse on detail.  In any event, the consultation closed in November 2011. The full responses have been published here and you can also read my  summary of some of the submissions

Anyway, eight months and one acrimonious resignation later, not to mention just over 5 months before the Commission is due to report, they are consulting again. This time, the consultation document is more substantial and provides some useful detail as to the kind of ideas being considered. The Commission has requested that those responding don’t repeat what they have already said. The deadline for responses is 30 September 2012. This must put the Commission’s deadline to report by the end of 2012  in some doubt, unless the point of the consultation is simply to confirm what it has already decided.

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Care system failures breach children’s human rights

10 July 2012 by Alasdair Henderson

A & S v. Lancashire County Council [2012] EWHC 1689 – read judgment 

The poor quality of provision for children in care was much in the headlines last week. A highly critical report by the Deputy Children’s Commissioner, which found children in many privately run care homes were at high risk of suffering violent or sexual abuse, was followed by the Government’s announcement of plans to speed up the adoption process and allow families who wish to adopt children to foster them first.

The problems of the current system and the effect these have on the lives of individual children was also vividly highlighted in a tragic case in which the High Court held that a series of failures by a local authority constituted a breach of two young boys’ rights under Articles 3 (protection from inhuman and degrading treatment), 6 (fair trial rights) and 8 (family and private life rights).

The very distressing story of the boys’ lives to date is set out in considerable detail at paragraphs 18-102 of Mr Justice Jackson (Jackson J)’s judgment. However, the brief facts are as follows. A and S are brothers who were first taken into care in 1998, aged just 3 and 6 months’ old, after their mother abandoned them. The local authority initially placed them with their aunt, but she was a single woman with six children of her own and could not cope.

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How most Australians do human rights without a Human Rights Act

9 July 2012 by David Hart KC

A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.

The constitutional framework  is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.

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Supreme Court dismisses self-incrimination appeal

9 July 2012 by Guest Contributor

Philips v Mulcaire [2012] UKSC 28 – read judgment

The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.

The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self-incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities.
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Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by Rosalind English

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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Does a Zimbabwe farm invader get refugee status?

5 July 2012 by Rosalind English

SK (Zimbabwe) v Secretary of State for the Home Office 19 June 2012 – read judgment

This case raises the interesting question whether someone who was involved as a member of the ruling Zimbabwe Zanu PF party with farm invasions can be eligible for refugee status. The answer is a definite no: the High Court held that the Upper Tribunal had been entirely correct in finding that  a Zimbabwean national, who had beaten farm workers in farm invasions intended to drive farmers and farm workers away from their farms, had committed inhumane acts amounting to crimes against humanity under the Rome Statute art.7(1)(k) and therefore by virtue of the Convention relating to the Status of Refugees 1951 (United Nations) art.1F(a) was excluded from refugee status.
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Hunting, animals, and the evolving landscape of rights

4 July 2012 by Rosalind English

Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment

The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions,  the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.

Background

In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:

“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…”
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Good week for Obama in the courts: challenges to climate change regulation also fail

29 June 2012 by David Hart KC

Coalition for Responsible Regulation v. EPA US Federal Court of Appeals, DC, 26 June 2012, read judgment

This week, two big decisions which will have come as a relief to the President. The US Supreme Court did not strike down his healthcare law (judgment here), and, to the subject of this post, neither did the Federal Courts of Appeal in Washington  declare invalid key greenhouse gas rules set by the Environmental Protection Agency. This saga is a perfect illustration of how closely law and politics get intertwined in the US.

As I pointed out in my previous post, Massachusetts v. EPA (549 U.S. 497 (2007)). told the EPA that it had a duty to regulate  greenhouse gas (GHG) emissions because they were “any air pollutant” within the meaning of the Clean Air Act – as two prior general counsels had repeatedly told it. The EPA (under the previous administration) needed to be taken to the Supreme Court before responding. Thereafter, the EPA, with a new head appointed after Obama’s election, reached an Endangerment Finding, to the effect that GHGs may “reasonably be anticipated to endanger public health or welfare”. In the pellucid prose of this Court,

Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.

Industry and a whole host of states (no prizes for guessing which fossil fuel producing states were in support) sought to challenge these rules.

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Court refuses to compel evidence on unlawful rendition in foreign proceedings

28 June 2012 by Rosalind English

Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin) (26 June 2012) – read judgment

The Divisional Court has ruled that common law principles cannot be used to obtain evidence from the Foreign Secretary for use in a foreign court. 

Angus McCullough QC of 1 Crown Office Row appeared as a special advocate in the closed proceedings in this case. He is not the author of this post.

“Norwich Pharmacal” orders are sometimes granted to obtain information from third parties to help the court establish whether unlawful conduct has taken place. A court can in such a case compel the third party to assist the person suffering damage by giving them that information. In the cases of Binyan Mohamad and Shakar Aamer the courts extended the application of these orders to foreign cases. Now it appears that both may have been wrongly decided.

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Lords Reform Bill incompatible with human rights law, says Deputy Prime Minister

28 June 2012 by Adam Wagner

The Deputy Prime Minister has said that he cannot declare the Coalition Government’s House of Lords Reform Bill as compatible with the Human Rights Act, as prisoners will be banned from voting for Lords if the bill becomes law.

Under section 19 of the Human Rights Act 1998, a Minister of Crown in charge of a Bill must make a statement to Parliament on whether the Bill is compatible with European Convention on Human Rights. The Explanatory Notes to the new Bill reveal that no such statement of compatibility can be made in this case:

278… the Deputy Prime Minister has said that he is unable to sign a statement under section 19(1)(a) of the Human Rights Act 1998. The Government wishes Parliament to proceed with the Bill notwithstanding that such a statement of compatibility cannot be made.

The reason that the Bill will not be compatible with the ECHR is that perennial headache for this (and indeed the last) Government, prisoner votes. As the explanatory notes explain:

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German court rules child’s religious circumcision can be a criminal offence – Analysis

27 June 2012 by Adam Wagner

Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.

Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated – I have been sent a much better English translation).

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