Category: In the news
1 November 2010 by Adam Wagner
Campaigners are seeking to challenge the rules against gay marriages and straight civil partnerships in the UK.
If they succeed then this would resolve the somewhat jumbled present position, where gay couples can form civil partnerships – which look almost exactly like marriages but aren’t – whereas straight couples are barred from doing the same.
As I posted here, the legalisation of gay marriage may be close at hand, and campaigners have chosen Reverend Sharon Ferguson and Franka Strietzel’s impending marriage application as one of eight test-cases to push through the final barrier for same-sex couples.
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28 October 2010 by Rosalind English
Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 Read judgment
We posted earlier on the Supreme Court’s ruling that an accused person’s rights under Article 6 of the Convention are breached if the prosecution leads and relies on evidence of the accused’s interview by police, if a solicitor was not present for that interview. Indeed Lord Hope thought it “remarkable” that
until quite recently, nobody thought that there was anything wrong with this procedure. Ever since ..1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption.
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27 October 2010 by Adam Wagner
Jack Straw, the former New Labour Justice Secretary, has marked the 10th anniversary of the passing into law of the Human Rights Act with an article in the Guardian.
There are two points of interest from the article. The first is that, by my reading at least, the article runs close to an apology for the previous government’s much-criticised anti-terrorism policies. Straw, who amongst other front line roles was Home Secretary from 1997 to 2001 and Justice Secretary from 2007 to 2010, says “It is hard to exaggerate the pressures that those with responsibility encounter when a population, or part of it, is scared.” This meant that the government were under pressure and “sometimes the same people who might have been seeking greater controls on the intelligence services will want to know why we didn’t have more intelligence”.
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26 October 2010 by Angus McCullough KC
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here, part 2 here and part 3 here.
Today, in the final part of this series, I concentrate on recent cases involving Article 12, the right to marry and a couple of other notable cases. You can find previous posts on Article 12 here.
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25 October 2010 by Angus McCullough KC
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here and part 2 here.
Today I concentrate on Article 6: the right to a fair trial (click here for previous posts on Article 6).
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22 October 2010 by Adam Wagner
For your weekend reading pleasure, some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.
The Inevitable Racial Effect: Counter-Terror Stop and Search Powers – Human Rights in Ireland: Rachel Heron, a PHD candidate at Durham Law School, argues that stop and search power under section 44 of the Terrorism Act 2000 has failed to yield significant results, except one: it has provided a further example of how racially neutral laws have a seemingly inevitable racial effect. Our most recent post on stop and search, which has been the subject of a decision of the European Court of Human Rights followed by a climb-down by the UK government, is here.
Case Law: Bernard Gray v UVW – privacy injunctions and anonymity – Henry Fox – Inforrm’s Blog: Mr Justice Tugendhat has returned to the subject of anonymity in privacy actions. These cases consistently test the interrelationship between Article 8 (right to privacy) and Article 10 (freedom of expression) of the European Convention on Human Rights.
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22 October 2010 by Angus McCullough KC
This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.
I aim to summarise the most important judicial review cases concerning Articles 2, 3, 5, 6 and 12 of the ECHR during the last year. I have also included two other cases of interest, although they cannot be categorised under any of these Articles. Today, Article 2: the right to life (click here for previous posts on the right to life).
The substantive Article 2 duty owed to mental patients
Rabone v. Pennine Care NHS Trust [2010] EWCA Civ 698 – read our post
The CA have clarified the scope and application of Savage. The HL in Savage had left unclear – to say the least – whether its finding that an operational ‘Osman’ type duty applied to a compulsorily detained mental patient extended to a voluntary mental patient.
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21 October 2010 by Rosalind English
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 (On appeal from the Court of Appeal [2009] EWCA Civ 649) Read judgment
The Supreme Court has ruled that ante-nuptial arrangements should be binding and enforceable in ancillary proceedings. Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
Although human rights were not in issue in this litigation, there is an interesting question to explore here in relation to the parties’ rights to peaceful enjoyment of their possession without interference by the state (in the form of a court order reversing the provisions of a private settlement). Now the Supreme Court has given nuptial agreements considerably more weight in the fall-out folllowing marital breakup the likelihood of a Convention-based challenge in this context falls away but does not disappear altogether because the statutory regime still obliges courts to interfere with agreements if they are considered unfair in any way, or prejudicial to the children of the marriage.
First, the following summary is based on the press release of the case published on the Supreme Court website.
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20 October 2010 by Adam Wagner
Updated | The House of Lords debated the vexed issue of prisoner voting yesterday, leading to a somewhat bad-tempered clash between a former Lord of Appeal and the new minister of state for justice.
The debate related to the 2005 decision of Hirst No 2, in which the European Court of Human Rights held that preventing prisoners from voting breached their human rights. The judgment has not yet been implemented in the UK, leading to repeated condemnations from the Council of Europe, which monitors compliance the Strasbourg court’s rulings. The CoE will reexamine the issue on 30 November, when it may decide to sanction the UK.
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19 October 2010 by Adam Wagner
Updated x 2 – full details of review below | The much-heralded Ministry of Justice budget cuts will be announced shortly as part of the government spending review. Previously, it had been reported that the department’s budget would be cut by around 20%, or £2bn (see our post). However, over the weekend the Observer reported that the cut would be much larger, running to £3bn – around 30% of the total budget – which represents a 50% increase on the original figure.
The justice minister Ken Clarke is believed to have had to take an extra hit “after the defence secretary, Liam Fox, and Michael Gove at education won more generous agreements than previously expected“.
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19 October 2010 by Kate Beattie
In August we commented on the risk that long-awaited reform of the coronial system would be shelved by the Ministry of Justice, arguing that the wait for promised reforms had left relatives of the dead in legal limbo.
To the dismay of campaigners, the new office of the Chief Coroner for England and Wales has fallen victim to the “bonfire of the quangos“.
The post was created by the Coroners and Justice Act 2009, which the Ministry of Justice said aimed “to deliver more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public”. In February, the previous Government heralded the post:
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18 October 2010 by Rosalind English
An injunction sought against the publication of certain information has been granted by the High Court in Northern Ireland under Article 2 (the right to life). The claimant also invoked the Prevention of Harassment (NI) Order and sought damages for misuse of private information. The Article 8 claim was only partially successful and the harassment claim was dismissed.
The claimant, who had been accused and subsequently cleared of murdering a journalist working for the defendant newspaper sought to prevent the publication of details relating to his address, his partner, his wedding plans and other personal information and photographs. The judge held that the publication of this information, in the light of threats from loyalist paramilitaries and dissident republican paramilitaries, would result in a “real and immediate risk” to the claimant’s life.
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18 October 2010 by Matthew Hill
No victory this time
R (British Gurkha Welfare Society and ors) v Ministry of Defence [2010] EWCA Civ 1098 – read judgment
The Court of Appeal has rejected a fresh attempt, based on Article 14 of the European Convention on Human rights (anti-discrimination), to obtain equal pension rights for Gurkhas who served in the British Army before 1997.
The long-running campaign for Gurkha rights has been highly publicised and successful, but it has not ensured equality of treatment in respect of pensions. The MoD continues to calculate accrued pension rights at a lower rates for Gurkhas than for other soldiers in respect of service performed before 1997, the date on which the majority of Gurkhas ceased to be based in Hong Kong and were instead moved to the UK.
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14 October 2010 by Rosalind English
Full body scanners are to become the only security option for people flying out of Manchester Airport, the BBC reports today. The excessive amount of coverage given to the disapproval expressed by civil liberties groups has now been counterbalanced by passengers’ attitudes, since it appears that people actually prefer the scanners to the full body pat down, and have been voting with their feet.
According to Manchester Airport, 95% of travellers prefer the scanners and queuing times have been radically reduced. It takes 2 minutes to undergo a pat down, but a mere 27 seconds to pass through a scanner.
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11 October 2010 by Adam Wagner
Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.
Interestingly, two crucial aspects of open justice have been reinforced as a result of a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.
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Campaigners are seeking to challenge the rules against gay marriages and straight civil partnerships in the UK.
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