Category: In the news
4 August 2012 by Rosalind English
A fascinating article by SOAS EU law specialist Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”
In a wide ranging analysis of the abiding obsession with Nazi Germany in the British media and elsewhere, as well as the “strange sado-masochism” of Germany itself, Gunner Beck demonstrates how effectively this prejudice creates and fosters confusion about the current crisis in the Eurozone and the reaction of some of its members to German demands for closer scrutiny. He asks us to question why German history
is still largely reduced to the twelve years from 1933 to 1945, and why it still seems impossible in Britain to criticise any aspect of German economic or foreign policy, especially on EU matters, without some kind of Nazi connotation or similar historical insinuation lurking somewhere in the background… Why has nearly a lifetime of peaceful and liberal-democratic development in Germany done so little to put the Third Reich into some kind of historical perspective?
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4 August 2012 by David Hart KC
A Mother v. A Father HHJ Platt, Romford County Court, 11 May 2012, read judgment
I recently dared to enter religious territory in a post about religious no-go zones declared by the courts – they should not pronounce on the intricacies of Sikh succession because it raised doctrinal issues which the courts should not decide. Compare and contrast this family law case.
Judges have to get involved in disputes on divorce, of which the current case is an exquisitely difficult example. Its facts are very simple. C was 10. Her parents and grandparents are Jewish. Her father is a Christian convert, and C wanted to be baptised. Her mother did not want this. She said father had brainwashed C, and it was premature. Mother went to court to stop any baptism proceeding until C was 16. The Court could not simply wash its hands of the case; that would encourage self-help taken by one or other parent, to the lasting resentment of the other.
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27 July 2012 by Isabel McArdle
Paul Chambers v DPP [2012] EWHC 2157 – Read judgment
The famous ‘Twitter joke’ conviction of Paul Chambers has been overturned on appeal, bringing welcome clarity to what is and what is not an offence of this type. On discovering a week before he was due to take a flight that the airport was closed due to adverse weather conditions, he tweeted that “I am blowing the airport sky high!!” unless the situation was resolved by the time of his flight. He was convicted of sending a message of a “menacing character”, but has had the conviction quashed on appeal, on the basis that, as it was a joke, it was not of a menacing character.
“I had decided to resort to terrorism”
Mr Chambers was intending to fly out of Robin Hood Airport on 15 January 2010 to meet a romantic partner he met on Twitter. On 6 January, via Twitter, he became aware that severe weather was causing problems at the airport, and engaged in a conversation on Twitter where he made the following comments:
“…I was thinking that if it does [close due to adverse weather] then I had
decided to resort to terrorism”
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25 July 2012 by Rosalind English
RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 – read judgment
It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.
So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.
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25 July 2012 by Rachel Marcus
Dinah Rose QC
Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.
There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.
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24 July 2012 by David Hart KC
Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment
This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?
Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via s.3 of the Human Rights Act (to make the FAA rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.
So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.
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22 July 2012 by Rosalind English
Updated | Mouvement Raëlien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012) – read judgment
This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.
The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.
At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message; one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”.
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22 July 2012 by David Hart KC
Khaira v. Shergill [2012] EWCA Civ 893 read judgment
We have become used to the courts getting involved, more or less willingly, in religious issues, not least where religious freedoms conflict with legal rules which are said to be inconsistent with the exercise of those freedoms. But as Adam Wagner pointed out, in an earlier round of this litigation concerning two Sikh places of worship (Gurdwaras), the courts have developed rules stopping themselves from deciding certain cases, not least because the courts recognise they don’t know what they are doing once they get themselves immersed in issues of religious doctrine.
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21 July 2012 by Rosalind English
.. has been discovered and we’ve removed the post. As I observed, there was no link to the Mississippi law online, so this was a prank to stir up momentary fervour in the blogosphere.
In fact, religious sensitivities have a much more insidious role to play in lawmaking, as I discuss in my post on a recent Strasbourg Grand Chamber case on free speech.
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20 July 2012 by Adam Wagner
Interested in the interaction between religion and law? If so, you will be interested in an event I am helping to organise this coming Monday 23 July at 6:30 for a 7pm start. There are a few tickets remaining – click here for details and booking , which is essential. The event is raising money for free legal advice clinics run by the Hebrew University in Jerusalem. Nb. the event is separate from the blog and 1 Crown Office Row, but hopefully will be of interest to some of our readers…
OUTLAWING GOD? The clash of the courts with religious believers
A “Question Time” style panel discussion of one of today’s most important and controversial issues:
Featuring a superb expert panel:
- Joshua Rozenberg (chair) – Britain’s best known legal commentator;
- Dr Evan Harris – Former MP and author of The Secular Manifesto ;
- Rabbi Michael Laitner – Assistant Rabbi, Finchley United Synagogue (Kinloss), qualified solicitor;
- John Bowers QC – Deputy High Court Judge and leading barrister with expertise in discrimination law;
- Dinah Rose QC – Leading public law and human rights barrister. Acted for the pupil in ‘the JFS case’.
Monday, 23 July 2012, 6:30pm for 7:00pm, followed by a reception with canapés and wine
Tickets: £20 – all details here
@ Norton Rose LLP, 3 More London Riverside, London SE1 2AQ
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18 July 2012 by Richard Mumford
An editorial article published in the British Medical Journal on 12 July 2012 (subscription required) has provoked controversy in right-to-life circles. The article, entitled “Sanctity of life law has gone too far” criticises the ruling of Baker J in the “M” case where an application to authorise the removal of artificial nutrition and hydration (ANH) from a patient in a minimally concscious state was refused. This blog reported on the M judgment in September 2011 here, here and here.
The author of the BMJ article, Dr Raanan Gillon, Emeritus Professor of Medical Ethics at Imperial College London (who describes himself as “a hybrid GP and philosopher”) takes Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. More widely, Dr Gillon questions the implications of the judgment for decisions about the best interests of patients whose state of consciousness is higher than minimal. Most controversial of Dr Gillon’s comments is likely to be his conclusion on the resource implications of the approach to best interests of incapacitated patients, which is put in the following terms:
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17 July 2012 by Guest Contributor
Last week, a number of media commentators, politicians and others sought to subvert the second consultation of the Bill of Rights Commission. This consultation invites views on a number of key issues that form part of the Commission’s mandate. In the Daily Mail’s correspondent’s view, the Commission has committed an appalling transgression by asking potential respondents whether the UK Bill of Rights should include additional rights, referring amongst other things to socio-economic rights. This is echoed by the Sun which argues that the Commission has ‘suggested’ (which it clearly has not) that ‘all Brits be given handouts as a birth right’, and the Daily Express which suggests “Spongers can Sue to Claim Benefits”.
Socio-economic rights are rights that relate to human survival and development. Like the majority of European and other countries, the UK has volunteered to be bound by a range of such rights as a result of ratifying a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ratified by the UK in 1976); the Convention on the Rights of the Child (ratified in 1992) and the European Social Charter (ratified by the UK in 1962). While these treaties haven’t been made part of our domestic law in the way the European Convention on Human Rights has been as a result of the Human Rights Act, they impose a range of human rights obligations on the UK. The government reports back periodically to the UN expert committees that monitor the implementation of these treaties.
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16 July 2012 by David Hart KC
Flatela Vava et al v. Anglo American South Africa Ltd [2012] EWHC 1969 (QB) 16 July 2012, Silber J read judgment
Back to the problem of when and where you can sue various members of a group of companies. In the Cape case (for which see my post), a parent company was held liable for failing to ensure that its subsidiary properly managed the risks posed by asbestos. In this case of Vava, the claimants wanted to sue a South African registered holding company (AASA) in the UK, on the basis that the real decisions were taken in the UK, and hence AASA were domiciled in the UK for purposes of suing them.
The case came before Silber J, on an application by the claimants for documents relevant to this jurisdictional issue. AASA resisted, on the basis that there was not a good arguable case that it could be sued in England, and therefore it did not have to produce the documents relevant to this issue.
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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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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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A fascinating article by SOAS EU law specialist Dr Gunner Beck lays bare some of the important problems created by British hostility to Germany, which, by contrast to the profound social and economic changes that have taken place in both countries in the seven decades since WWII, appears “timeless and unchanging.”
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