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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.
Five activists were recently acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. But did the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice?
Article 6 of the European Convention on Human Rights guarantee a “fair and impartial tribunal”, and it is sometimes claimed in courts that a judge or judicial panel are biased and therefore cannot preside over a fair trial. While not often successful, the complaints are always taken seriously. As any law student knows, justice must not only be done but also be seen to be done.
To this end, judicial impartiality has been much in the news of late. Cherie Booth QC, an observant Christian, was apparently rapped by the Office for Judicial Complaints for reducing a defendant’s sentence on the grounds that he was a “religious man” who knew what he did was wrong. Meanwhile, in a less successful challenge to a judicial decision, Lord Carey failed to convince the Court of Appeal that a judicial panel of special religious expertise was needed in the case of a Christian marriage councilor sacked for refusing to counsel gay couples.
Hall & Ors v Mayor of London (On Behalf of the Greater London Authority) [2010] EWCA Civ 817 (16 July 2010) – read judgment
The Mayor of London has won a court order to evict a camp of protesters from Parliament Square, with the Court of Appeal upholding a decision of the High Court stating that the Mayor’s response to the protest was proportionate and not a breach of the protesters’ human rights.
The protesters had gained a temporary reprieve by appealing the decision to the Court of Appeal, but that appeal has now been rejected. The BBC report that Boris Johnson, the mayor of London, said “I think it’s wonderful that as a city we can protest. But it is nauseating what they are doing to the lawn“.
The Lord Chief Justice has lamented the ease with which new laws can be passed without proper scrutiny, comparing new powers to those which were imposed by England’s worst tyrant.
Lord Judge, who is the Lord Chief Justice and head of the judiciary, was speaking at the annual Lord Mayor’s dinner for the judiciary; his speech can be read here.
The thrust of the judge’s speech was his concern at the proliferation of what he called “Henry VIII” clauses, the proliferation of which had “astonished” him. Henry VIII’s 1539 Statute of Proclamations allowed the King’s proclamations to have the same force as Acts of Parliament. Lord Judge compared this to a series of recent Acts which have given the Government licence to enact law without the scrutiny of Parliament.
The Guardian have published a number of documents which have been disclosed to the High Court as part of a claim for compensation by men claiming they were mistreated abroad with the knowledge of UK security services.
The Guardian claims that the documents reveal the “the true extent of the Labour government’s involvement in the illegal abduction and torture of its own citizens”. Key passages can be found here.
The documents were disclosed as part of the ongoing case of Al Rawi and Ors v The Security Services. Although the case has not yet been heard, it has been the subject of a number of high-profile applications for secret documents which the Government have generally lost. We posted recently on the judgment of Mr Justice Silber leading to the disclosure of some of the most recent documents which the Guardian have published (see also here).
The courts’ relationship with religious principles is rarely out of the spotlight, and recent decisions have provided more fuel for this debate.
Aidan O’Neill QC, writing on the UK Supreme Court Blog, provides an interesting discussion of last week’s Supreme Court decision in HJ (Iran) in the context of a series of controversial United States decisions on sexuality and religion.
We posted last week on the case of HJ (Iran), in which the Supreme Court ruled that policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights. Rosalind English examined the case in the context of a European Court of Human Rights rejecting a complaint by a same-sex couple that Austria was in violation of the Convention for not granting them the right to marry.
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.
The criminalisation of support for terrorist organisations has arisen in various domestic and international contexts recently, and it is likely that the issue will continue to attract controversy as states attempt to trace the boundaries of what can fairly be considered “support” for terrorism, and risk criminal legislation unjustifiably infringing on human rights.
The Human Rights in Ireland blog has posted the first in a series addressing the issue (update – the second post in the series is now available, see below). In the post, Dr. Cian Murphy suggests that “One of the most corrosive effects on political freedom during the “war on terrorism” has been that caused by material support legislation.” He goes on to refer to three recent decisions, including the 2008 Kadicase on EU implementation of UN sanctions against individuals linked to the Taleban, al-Qaeda and bin Laden (see ASIL case comment).
We recently started adding links to interesting new articles and case-law the sidebar under the heading “Recent selected sources (del.icio.us)”. Below is a quick rundown of the most recent links. The full list of links can be found here.
8 July | A humane nation is a safer nation: The Foreign Secretary has said human rights are the “irreducible core” of foreign policy, along with poverty prevention. See his speech here.
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.
The controversial stop and search anti-terrorism powers are to be scrapped after a decision of the European Court of human Rights that they violated human rights law.
According to a press release on the Home Office website, the decision will have immediate effect and is a direct response to the European Court’s decision:
Theresa May today tells Parliament that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.
The move is in response to a decision by the European Court of Human Rights (new window), which found that the use of stop and search powers under section 44 of the Terrorism Act 2000 (new window) amounted to a violation of the right to a private life. Continue reading →
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omaghbombingintelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.
The report – Without Suspicion Stop and Search under the Terrorism Act 2000 – runs to 64 pages and seeks to systematically dismantle the case for area-based stop and search under section 44 of the Terrorism Act 2000, which allows the police to stop and search without suspicion. Responding to proposals to cut the scope of the scheme, the reports states:
… we believe that even if the law were improved—if its geographic scope were permanently narrowed or its use restricted to specialist officers—the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK’s human rights obligations and is counterproductive.
The Master of the Rolls Lord Neuberger has given the firstlecture 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. Continue reading →
The Coalition Government is to introduce a system of statutory regulation to govern the use of automatic number plate recognition (ANPR) cameras, responding to criticism of its scheme in Birmingham which was said to be targeting Muslim residents.
As we posted recently, ANPR cameras were controversially introduced in two predominantly Muslim areas of Birmingham under a scheme funded by an counter-terrorism initiative; the cameras have since been covered with plastic bags while a consultation process is undertaken
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A (Appellant) v Essex County Council & National Autistic Society (Intervener) [2010] UKSC 33
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