Category: In the news
13 August 2010 by Adam Wagner
DNA home-testing is likely to be an increasingly high-profile and controversial issue in the coming years, both from a moral and legal perspective.
I posted last week on the moral maze which surrounds DNA home testing, in light of new guidance for direct-to-consumer genetic tests published by the Human Genetics Commission.
The guidance has been greeted with mixed reactions. GeneWatch UK, a not-for-profit organisation which investigates how genetic science and technologies impact on society, have condemned the guidelines, lamenting that there will be “no independent scrutiny of companies’ performance or the claims they make about people’s risk of developing diseases in the future” . The focus of their criticisms are that the HGC represents the interests of the genetic testing companies over those of the general public.
Continue reading →
Like this:
Like Loading...
13 August 2010 by Adam Wagner
David Kelly
It has long been accepted that the coroners’ courts, which investigate tens of thousands of deaths per year, are in urgent need of reform. But long-awaited changes are now under threat from Ministry of Justice budget cuts, leaving relatives of the dead with an inconsistent system of varying quality. This arguably places the state in breach of is obligations under human rights law.
A death is referred to a coroner when there is reasonable cause to suspect that it was violent or unnatural, or if the cause is unknown. In 2009, just under half of around 460,000 deaths were reported to the coroner, and 31,000 inquests were then opened. Inquests are rarely out of the news; for example, today calls were renewed for an inquest into the death of David Kelly. In the absence of obvious negligence or suspicious circumstances triggering a criminal investigation or compensation claim, inquests are often the only chance for relatives to get to the bottom of how a person died.
Continue reading →
Like this:
Like Loading...
13 August 2010 by Matt Donmall
Expected to show him support?
TM (Zimbabwe) and others v Secretary of State for the Home Department [2010] EWCA Civ 916 – Read judgment
Is it reasonable to expect an asylum seeker on their return to their home country to lie about their political beliefs and thereby avoid persecution? This question was recently addressed by the Court of Appeal in light of a potentially wide-ranging decision of the Supreme Court relating to gay refugees.
Last month the Supreme Court held in HJ (Iran ) v Secretary of State for the Home Department [2010] UKSC 31 that to compel a homosexual person to pretend that their sexuality does not exist is to deny him his fundamental right to be who he is (see our post). When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, if the tribunal concludes that a material reason for his living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then his application should be accepted [para 82].
Continue reading →
Like this:
Like Loading...
12 August 2010 by Adam Wagner
It is possible that the European Union will soon sign up to the European Convention on Human Rights. The change would have interesting implications for European human rights law, as well as for UK citizens seeking redress for alleged human rights violations.
Comments are enabled for this post
It may sound odd that whilst member states are signed up to the European Convention, the European Union as a corporate body is not. But negotiations began last month (see this Council of Europe press release) on the European Union’s accession to the European Convention. The Vice-President of the EU’s Commissioner for Justice, Fundamental Rights and Citizenship said “We are now putting in place the missing link in Europe’s system of fundamental rights protection, guaranteeing coherence between the approaches of the Council of Europe and the European Union”.
Continue reading →
Like this:
Like Loading...
9 August 2010 by Adam Wagner
The Strasbourg court
A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.
The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.
Continue reading →
Like this:
Like Loading...
9 August 2010 by Adam Wagner
A leading children’s charity has said that vulnerable children are trapped in an unnecessary limbo of court delays, with courts taking up to 65 weeks to decide whether it is safe for a child to remain with its parents.
Barnardo’s has based its research (see press release) on ‘court data’ although the data itself is not published on their website. On the face of it, the figures are worrying:
Vulnerable children are waiting on average more than a year (57 weeks) in unstable family homes or emergency foster placements before a county court decides if they will be taken into care. In the family proceedings (magistrates) court the average time is 45 weeks – more than 10 months.
Continue reading →
Like this:
Like Loading...
6 August 2010 by Adam Wagner
In happier days
A database which was to hold the details of every child in England will be switched off at noon today, but the uneasy relationship between social services, the government and the courts in child protection matters still remains.
The closure of the £224 million scheme marks a victory for human rights and privacy campaigners as well as the fulfilment of a longstanding promise by the coalition partners.
The ContactPoint Database was set up in the wake of Lord Laming’s 2003 Victoria Climbié Public Inquiry, which recommended, amongst other major changes in child protection policy, that the government should investigate the setting up of “a national children’s database on all children under the age of 16.” Victoria Climbié died in 2000 at age 8 after being abused by her guardians. In the trial of her guardians which followed her death, the judge described the response of local authorities as “blinding incompetence”.
Continue reading →
Like this:
Like Loading...
5 August 2010 by Adam Wagner
Lord Hope
Lord Hope, the Deputy President of the UK Supreme Court, has said that repealing the Human Rights Act would have little practical effect effect on the enforcement of rights in the courts.
Joshua Rozenberg reports Lord Hope’s comments in the Law Society Gazette:
… what Hope did confirm – and I have never before heard a serving judge say this so clearly – was that repealing the Human Rights Act 1998 would, by itself, make very little difference to way such rights are enforced in our courts. As he explained, the most significant change to the UK’s relationship with the Human Rights convention came in 1966, when Britain first allowed individuals to bring cases against the government; until then, claims against Britain could be brought only by other states. As a result, courts in the UK felt obliged to take the convention into account.
Continue reading →
Like this:
Like Loading...
5 August 2010 by Adam Wagner
A Federal court in California has struck down a ban on gay marriage in the state, marking the first step on a path to a United States Supreme Court decision on the issue. A similar decision is unlikely here, however, given a recent European Court of Human Rights ruling on gay marriage. Ultimately, only Parliament is likely to bring about a change to the law in the UK.
The decision in Perry v Schwarzenegger has been widely reported and can be downloaded here. U.S. District Judge Vaughn R. Walker found that California’s ‘Proposition 8’, approved by voters in 2008, was unconstitutional. SCOTUSBlog explain the reasoning:
Continue reading →
Like this:
Like Loading...
4 August 2010 by Adam Wagner
The Human Genetics Commission have today published new guidance for direct-to-consumer genetic tests, including a recommendation that children should not be genetically tested by their parents unless the test is clinically indicated. The guidelines highlight that the ethical issues surrounding home-testing are still fuzzy and provide an interesting challenge from a perspective of human rights.
Home DNA testing kits are a fast-growing trend. They have already been on sale direct to consumers for three years by companies such as 23andMe and deCODEme, which advertise home-testing as a means of “taking charge of your health” and “filling in your family tree”. DNA paternity testing has been available for years, but it is the health aspects of home testing which have huge and potentially troubling implications in respect of basic rights.
Continue reading →
Like this:
Like Loading...
3 August 2010 by Adam Wagner
Happy birthday!
The UK’s new Supreme Court has reached the end of its first term, leading to some interesting discussions about its future from both practical and philosophical perspectives. From a human rights angle, a well-tooled and robust Supreme Court which acts to keep the government in check is good for everyone.
On a practical level, the UK Supreme Court Blog has posted on the stark warning from the UKSC’s chief executive, Jenny Rowe, to the effect that the Government’s proposed budget cuts could cripple the new court after only a year in operation. The UKSC Blog reports that Jenny Rowe, the court’s Chief Executive, has said she is not sure where the axe will fall but that “since casework (i.e. the hearing and determination of appeals) was the Court’s “priority“, it would be the Court’s public education and outreach programmes that would be most vulnerable.”
Continue reading →
Like this:
Like Loading...
2 August 2010 by Adam Wagner
The government has launched a sparkly looking but as yet scantily featured new legislation website, legislation.gov.uk, to replace the two websites which previously did the same job, OPSI and the Statute Law Database.
One notable absence from the National Archives-run site is any guarantee that the statutes will be up to date after 2002. This was also a limitation of its predecessors, which is why lawyers generally avoided them for fear of unknowingly using an out-of-date statute. “About half” of the legislation is now up to date, according to the frequently asked questions section. This is surprising given the amount of money which is spent on Government IT; the new website asking what laws people want scrapped will apparently alone cost £20,000.
Continue reading →
Like this:
Like Loading...
29 July 2010 by Adam Wagner
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
Continue reading →
Like this:
Like Loading...
29 July 2010 by Adam Wagner
AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) – Read judgment
The Court of Appeal has held that control orders of three men suspected of terrorism revoked by the Government should in fact be quashed altogether. The decision opens the door for the men to claim compensation, and deals another blow to the controversial control order scheme.
This is the latest in a long and tortuous series of court judgments which have chipped away at the controversial control order scheme. This latest decision arises from a 2009 House of Lords (now the Supreme Court) decision that it was a breach of the right to a fair trial under Article 6 (the right to a fair trial) to hold someone under a control order without sufficient information about the allegations against him, even where the case against the “controlee” was based on closed materials, the disclosure of which would compromise the country’s national security (see our summary).
Continue reading →
Like this:
Like Loading...
29 July 2010 by Adam Wagner
He can come now
The proposed change to the rules for bringing on who can apply for international war crimes arrest warrants has predictably generated some strong reactions
The changes will make it necessary to get the consent of the Director of Public Prosecutions before an arrest warrant can be granted. The Ministry of Justice say they are changing the rules in order to prevent arrests happening after the presentation of “flimsy” evidence. Those who fear arrest under the current system range from Israeli ministers to the Pope.
Continue reading →
Like this:
Like Loading...
DNA home-testing is likely to be an increasingly high-profile and controversial issue in the coming years, both from a moral and legal perspective. 
Recent comments