Category: BLOG POSTS
13 June 2015 by Guest Contributor
British legal history has long inspired the common law world. The Magna Carta, an 800-year-old agreement between a King and his barons, remains an icon of liberty, seen around the world as the foundation stone of the rule of law. In contrast, British law on online surveillance and privacy has been arcane and obscure – a field that is for reluctant experts if it is for anyone at all.
The law has largely been developed in reaction to external pressure. The Regulation of Investigatory Powers Act 2000 was the result of a series of judgments of the European Court of Human Rights. The Data Retention and Investigatory Powers Act 2014 was rushed into law after an EU Court of Justice ruling. This piecemeal approach provides a poor basis for investigatory powers and a worse one for privacy rights.
Momentum towards change has been building. The Edward Snowden revelations brought to an end the public’s ignorance – or quiet endurance – of state surveillance operations. So, although last year’s emergency law permits ongoing data surveillance, it also put in motion a review of the powers of intelligence and law enforcement agencies.
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13 June 2015 by Guest Contributor
Re A (A Child; Wardship; Fact : Finding : Domestic Violence [2015] EWHC 1598 (Fam) – read judgment
This recent domestic violence case involving a child and the comments made by Mrs Justice Pauffley have been exciting the interest of both the media those agencies involved in child protection, such as the NSPCC.
Background facts
The parents met in 2004 and were married in India in January 2005. They travelled to England in 2006 on six month visas. They became ‘over stayers’ when those visas expired and they decided not to return. They lived in a series of addresses with other families.
In June 2007 their only child, A, was born.
It was the mother’s case that after about three months the marriage became unhappy – a situation which continued until the final separation in 2013. The father, by contrast, maintained they were very happy until about 2011.
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7 June 2015 by acwessely
Photo credit: Guardian
This week’s Round-up is brought to you by Alex Wessely.
In the news
Three high profile cases concerning the UK government have been granted hearings in the European Court of Human Rights grand chamber, putting the relationship between the government and the ECHR “in the spotlight“.
- Ibrahim and Others v. the United Kingdom concerns four men convicted of offences relating to the 21 July London terror plot. The men were initially interviewed by police before they were allowed to consult a lawyer (on the grounds that the urgent situation meant no delay was permissible), which they claim is a breach of their Article 6 rights (right to a fair trial).
- The second case, Hutchinson v UK, concerns the politically charged issue of whole life tariffs – prisoners who have been told they will never be released from jail. Ian Hutchinson, sentenced in 1983 for triple murder and rape, argues that this constitutes a violation of his Article 3 rights (protection against torture and inhumane and degrading treatment). This argument was rejected in February, but is now being re-heard.
- The third case is brought by the family of Jean Charles de Menezes, who was killed by police in 2005 when they mistakenly thought he was planning a suicide attack at Stockwell station. This is covered by Inquest, the Guardian and Evening Standard.
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4 June 2015 by Guest Contributor
Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.
In this post, I want to talk about the European Court of Human Rights in Strasbourg.
The government’s key concern – judging by the Grayling paper published last October – is that the Strasbourg Court has got too big for its boots and won’t stop telling us what to do. Hence the manifesto commitment to introduce a British Bill of Rights. The Prime Minister’s personal gripe – with some justification – is the Court’s 2005 ruling on prisoner voting: Hirst v UK (No.2) (2005) 42 EHRR 849.
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3 June 2015 by Kate Beattie
Tomorrow night (4 June) 1COR and JUSTICE are holding a seminar on public law in an age of austerity.
The seminar is designed for solicitors (whether in private practice or in-house) and those working in the civil justice and human rights sector.
Topics include:
- introduction to Public Law: Judicial Review Principles, Procedure and Funding
- Human Rights in an Age of Austerity – Moving towards a British Bill of Rights?
- Breakout sessions
- Panel discussion on the Future of Public Law in an Age of Austerity – Speakers include The Rt Hon Sir Stanley Burnton.
Thursday 4 June 5.00-7.30pm. Follow this link to the full programme: 4 June programme.
Places are free but you must register by emailing lisa.pavlovsky@1cor.com. When replying please state your preference for the break-out sessions.
3 June 2015 by Rosalind English
mike 0010
Léger (Judgment) [2015] EUECJ C-528/13 (29 April 2015) – read judgment
Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process. Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.
This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.
Legal background
This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability.
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2 June 2015 by Guest Contributor
The October 2014 Conservative Party proposals promised to:
End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement.
In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point
at which our Bill comes into effect.” (see proposals here )
The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and the Queen’s Speech on 27th May promised that there would be a consultation exercise (see summary here)
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1 June 2015 by David Scott
With our new team of Scots law researchers in place, the time has come for the briefest of introductions to the Scottish legal system. David Scott is our tour guide.
The Court system
The Scottish court system is divided into five tiers:
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1 June 2015 by Thomas Raine
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.
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1 June 2015 by Jim Duffy
The General Court
An interesting event – particularly in the current political context – takes place this Thursday at LSE. Hart Publishing will be marking the launch of a new book, “>’“>Europe’s Justice Deficit?‘, with a debate between Justice Guiliano Amato of the Constitutional Court of Italy and Professor Christian Joerges of the Hertie School of Government. Justice Amato twice served as Prime Minister of Italy.
Together with the book’s co-editors (Dimitry Kochenov, Gráinne de Búrca and Andrew Williams) and authors, Amato and Joerges will consider whether the EU is simply a political and legal order, whether it undermines the pursuit of justice by Member States, and whether scholars and policy-makers have paid sufficient attention to questions of justice in the EU context.
Date and place: Thursday June 4, 2015, London School of Economics and Political Science; 3-6pm, room 32L.G.03 (on the South side of the Lincoln’s Inn Fields). The event will be followed by a reception.
If you would like to attend, email Sarah Lee at s.lee33@lse.ac.uk
1 June 2015 by Hannah Lynes
Actor Benedict Cumberbatch is vocal in his support for the HRA
This week’s Round-up is brought to you by Hannah Lynes
In the news
Prime Minister David Cameron has postponed the introduction of a British Bill of Rights, the Queen’s Speech containing only proposals for consultation. Director of Liberty, Shami Chakrabarti has welcomed the development:
“It is heartening that a Conservative Government committed to scrapping the Human Rights Act has at least paused for thought in its first Queen’s speech. There is a long struggle ahead but time is the friend of freedom.”
Debate surrounding the proposed Bill of Rights continues in full force. Proponents of the HRA draw attention to perceived misconceptions advanced by the opposing side. Lord Leveson points out that UK courts are not ‘bound’ by the decisions of Strasbourg (“the legislation only requires us to take them into account”), whilst Colin Yeo for the Free Movement blog questions the accuracy of claims that the HRA prevents us from deporting serious foreign criminals. Dr Ed Bates argues in the Constitutional Law blog that the domestic judiciary is more supportive of the ECHR than certain politicians would have us believe. Useful coverage of the views expressed by senior judges is provided here.
Other news
Housing: Leading housing charities last month issued a report claiming that the present ‘crisis’ in housing has put the UK in breach of its UN obligations to provide adequate homes. Housing campaigners fear government proposals set to reduce housing benefit for 18-21 year olds will serve to exacerbate the problem. The measures could “spell disaster for thousands of young people who…could be facing homelessness and the terrifying prospect of roughing it on the streets”, warns Chief Executive of Crisis, Jon Sparkes.
Surveillance: Prominent legal academics have signed a letter calling on the Government to ensure that any changes in surveillance law “are fully and transparently vetted by parliament, and open to consultation from the public and all relevant stakeholders”. The Guardian reports here.
Police: Hampshire Constabulary has admitted a failure to properly investigate the complaint of a victim of rape, who had been accused of lying by the force. An out-of-court settlement was reached with the young woman following commencement of proceedings under the Human Rights Act.
Discrimination: A woman turned down for a job because she observed Shabbat, the Jewish day of rest, was successful in her claim for indirect discrimination. The Telegraph reports on the decision.
Gender: An interview with barrister Roy Brown in Halsbury’s Law Exchange examines the significance of recent High Court decisions in JK and Carpenter for transgender rights in the UK.
In the courts
This case concerned the question of legal representation in complex family proceedings. The Court of Appeal held that whilst it may be inappropriate for an unrepresented litigant to conduct cross-examination of his alleged victim, a judge is not entitled to order the Courts Service (HMCTS) to pay for a legally trained advocate to do so on the litigant’s behalf. A court is not permitted to circumvent the detailed provisions for legal aid eligibility set out in LASPO. Further, the result does not amount to a breach of Article 6 ECHR (the right to a fair trial), since the court has available to it other alternatives. These include the possibility of the judge himself conducting the questioning.
1COR’s David Hart QC analyses the decision here.
UK HRB posts
Events
1COR/JUSTICE will be holding a major seminar on 4 June: Public Law in an Age of Austerity. To register please email Lisa Pavlovsky.
If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.
Hannah Lynes
31 May 2015 by David Hart KC
Re K and H [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment
Philippa Whipple QC and Matthew Donmall of 1 COR appeared for the Lord Chancellor in this case. They have played no part in the writing of this post.
Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.
That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.
Continue reading →
31 May 2015 by Martin Downs
Last week the people of the Republic of Ireland voted in a referendum to amend its constitution to allow marriage by two persons “without distinction as to their sex” by 62 – 38%.
The exuberance of the moment was captured by a tweet from the Irish Minister of State for Equality, Aodhán Ó Ríordáin TD stating, “Ireland hasn’t just said “Yes” Ireland has said “F❤CK YEAAHHHH”
The media was awash with celebratory images. Prominent in these were two Irish Senators who played their part by bringing test cases. Decriminalisation had only come about in Ireland in 1993 after Senator David Norris had challenged the previous discriminatory law in the European Court of Human Rights and won (in 1998) with the assistance of his Counsel, then Senator and subsequently President Mary Robinson.
The recognition of same sex partnerships in Ireland really came to prominence when Senator Katherine Zappone sought recognition of her Canadian marriage (with Ann Louise Gilligan) within the tax system. The High Court ruled that the constitution defined marriage as being between a man and a woman and the stage was set for battle to commence. In the meantime the government had started to take evasive action and defined marriage in the Civil Registration Act 2004 as being between a man and a woman (it was previously undefined). This was the year that the UK Parliament passed the Civil Partnership Act – which covered Northern Ireland. In 1998 the Irish Government in the Belfast Agreement committed to bringing,
measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.
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28 May 2015 by Kate Beattie
Join 1COR and JUSTICE on Thursday 4 June 5.00-7.30pm in central London to discuss public law in an age of austerity.
Topics include:
- introduction to Public Law: Judicial Review Principles, Procedure and Funding
- Human Rights in an Age of Austerity – Moving towards a British Bill of Rights?
- Breakout sessions
- Panel discussion on the Future of Public Law in an Age of Austerity – Speakers include The Rt Hon Sir Stanley Burnton.
This seminar is designed for solicitors (whether in private practice or in-house) and those working in the civil justice and human rights sector.
Follow this link to the full programme: 4 June programme.
Places are free but you must register by emailing lisa.pavlovsky@1cor.com. When replying please state your preference for the break-out sessions.
27 May 2015 by Laura Profumo
Photo credit: The Guardian
Laura Profumo brings us the latest human rights goings on.
In the News:
This afternoon, the new Conservative Government’s legislative plans were announced in the Queen’s Speech. Michael Gove, the recently appointed Justice Secretary, will have to defend his party’s intention to scrap the Human Rights Act, blunting the influence of Strasbourg jurisprudence. As Daniel Hannan observes, Gove faces a “different order of magnitude” in his new role, finding himself up against an “articulate and wealthy lobby” within the legal profession. An “elegant compromise” might be found, Hannan suggests, in amending our extant Bill of Rights to include ECHR freedoms, restoring “our sovereignty and our democracy”.
It is certainly clear that Gove will have to carefully pilot the reforms through Parliament. Lord Falconer cautions that the House of Lords, where the Conservatives don’t have a majority, may prove obstructive:
“If the Conservative measures strike at fundamental constitutional rights, the Lords will throw this back to the Commons”.
The backbencher minority of ‘Runnymede Tories’, forcefully headed by David Davis, will also seek to stall the Bill’s course. Yet, Matthew d’Ancona concedes, “if anyone has the intellectual firepower to square all the circles it is Gove”.
In brighter news, the Republic of Ireland has become the first country to legalise same-sex marriage through popular vote. Some 62% of the electorate voted in favour of the reform, with all but one of the Republic’s 43 constituencies voting Yes. The result comes just two decades after the Irish government decriminalised homosexuality, marking a milestone in Ireland’s divisive religious history. The Archbishop of Dublin, Diarmuid Martin, recognised the vote as a “social revolution”, which requires the Church to “have a reality check, not move into the denial of realities”.
In a prelude to the historical referendum, the ‘Gay Cake’ Case, which has gripped Northern Ireland for the last year, come to a close last week. In a clear decision, it was found that the Christian bakery’s refusal to make a campaign cake the LGBT support group, QueerSpace, amounted to direct discrimination on grounds of sexual orientation. The outcome has not been welcomed by all. TUV leader Jim Allister lamented it a “dark day for justice and religious freedom”, whilst Melanie McDonagh, writing in the Spectator, found the decision inversely “intolerant and discriminatory”, forcing a Presbyterian business to promulgate a message “at odds with their belief”. Yet talk of religious persecution is besides the point, argues academic Colin Murray. The case concerned the “ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium”. It was not, as McDonagh suggests, a case of cake artisans’ ‘right to ice’, but the right of the public to lawfully contract with a business, irrespective of “how that public is constituted”.
Following the decisive vote across the border yesterday, many hope that Northern Ireland, the only part of the United Kingdom where same-sex marriage is still prohibited, will follow suit. Deputy First Minister Martin McGuinness has advocated a referendum: “This is a matter of whether or not we want to live in a modern progressive society that respects minorities”. Now that Northern Ireland has their cake – it remains to be seen whether the idiom will ring true.
In Other News:
- Haile v London Borough of Waltham Forest: The Supreme Court ruled that the appellant had not made herself intentionally homeless when, after learning that she was pregnant, she left her London hostel. As she would have been evicted from the hostel anyway, on giving birth to her child, the Court ruled in her favour. Her lawyer, Nathaniel Matthews, welcomed the decision as one in which “glorious common sense prevailed. Women who become homeless because they have become pregnant must be protected”.
- Vladimir Putin has signed a bill which allows foreign NGOs to be banned from operating in Russia. The law will allow authorities to prosecute NGOs which are designated as ‘undesirable’ on national security grounds. Individuals working for such organisations could face fines, or up to six years’ imprisonment. Amnesty International has condemned the measure as part of the “ongoing draconian crackdown…squeezing the life out of civil society”.
In the Courts:
- Identoba and Others v GeorgiaThe Georgian police failed to protect participants in a march against homophobia from violent attacks of counter-demonstrators. ECtHR held the police had violated the protestors’ Article 3 and 11 rights, in failing to take sufficient measures to prevent the attacks.
- SS v the United Kingdom; F.A and Others v the United Kingdom A case concerning convicted prisoners’ entitlement to social security benefits was held to be inadmissible by ECtHR. The applicants were prisoners in psychiatric hospitals who complained that, under new 2006 regulations, denying them benefits paid to the other patients amounted to unjustified discrimination. The Court emphasised Contracting States’ margin of appreciation in social policy, finding that the differential treatment was not unreasonable, given that the applicants, whilst patients, were also convicted prisoners.
- Gogitidze and Others v Georgia The ECtHR ruled that the forfeiture of a wrongfully acquired property was not in breach of the tenant’s right to peaceful enjoyment of their possessions, under Article 1 of Protocol No.1. As the property confiscated belonged to the former Deputy Minister of the Interior, the Court inquired whether a proportionate balance had been struck between the method of forfeiture and the public interest in combating political corruption. The domestic courts were held to have achieved such a balance.
Events:
- ‘Do we need a new Magna Carta?’ The Miriam Rothschild & John Foster Human Rights Trust, and University College London, are hosting a lecture given by Lord Lester QC, on alternatives to the embattled Human Rights Act. The event will take place at 6.15pm, 15th June, at the Institute of Child Health. Please RSVP to rsvplectureinvitation@gmail.com.If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor, Jim Duffy, at jim.duffy@1cor.com
British legal history has long inspired the common law world. The Magna Carta, an 800-year-old agreement between a King and his barons, remains an icon of liberty, seen around the world as the foundation stone of the rule of law. In contrast, British law on online surveillance and privacy has been arcane and obscure – a field that is for reluctant experts if it is for anyone at all.
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