Category: BLOG POSTS
17 June 2012 by Adam Wagner
The current Government often complains about a “democratic deficit” in the courts. It seems that “unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.
The Government seeks to solve the problem by involving Parliament more in the judicial process, the latest and most striking example being the Home Office’s attempt to codify Article 8 ECHR, the right to private and family life, in immigration cases. The Home Office wants fundamentally to alter the role of the courts, hoping that it will “shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules” (see para 39). The argument is that since judges are unaccountable, those who are accountable must be more central in the decisions they make, particularly in sensitive areas such as immigration.
This is attempt to take power away from judges. But why?
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15 June 2012 by Guest Contributor
At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.
What exactly is canon law and how does it relate to marriage?
Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.
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12 June 2012 by Rosalind English
Preliminary reference in the case of Łukasz Marcin Bonda – Case C-489/10 – read judgment
Fraud is wrong, right? In most countries with more or less sophisticated criminal codes, it is an offence to obtain money by false representations, just as it is to thump an old lady over her head and grab her handbag.
In law, these two somewhat disparate actions add up to the same thing: theft, punishable by fines or imprisonment. It is not sufficient, in the latter case to return the poor old party’s handbag, even with the wallet intact. There has to be something more to discourage privateering of this sort. Punitive measures usually follow restitution in such cases. So why is Luxembourg telling us that theft in the form of subsidy fraud is an administrative matter, not a criminal one? And if it isn’t criminal, why don’t we all do it (those of us with sufficient agricultural land to qualify, that is)
This was a reference from the national court to the Court of European Union (CJEU) for a preliminary reference in relation to criminal proceedings against Mr Bonda for fraud in his declaration of the agricultural area eligible for the single area payment.
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12 June 2012 by Adam Wagner
The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”
The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.
Let’s consider the argument. The Church puts a number of propositions. First,
It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.
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11 June 2012 by Rosalind English
Vinkov v Nachalnik Administrativno-nakazatelna deynost, Case C-27/11 – read judgment
Buried in the somewhat obscure details of this reference for a preliminary ruling is a hint of how the Court of Justice of the European Union (CJEU) is approaching arguments based on human rights principles as reflected in the Charter of Fundamental Rights of the European Union (‘the Charter’). Put briefly, there has to be a very clear involvement of EU law before a case can be made out under any of its human rights provisions or principles.
The Bulgarian Court of Appeal referred to the CJEU a question for a preliminary ruling arising out of a dispute over penalty points which triggered automatic disqualification from driving under Bulgarian law.
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11 June 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly dose of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Thanks to the Jubilee, it was a short week for most of us but there was still plenty happening in the world of human rights. Hot topics included the criminalisation of forced marriage and the UK’s second UPR, and as usual the debate surrounding the Justice and Security Bill rages on. And, today the Home Secretary will unveil her plans to persuade judges to alter how they interpret Article 8 of the European Convention on Human Rights.
by Wessen Jazrawi
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7 June 2012 by Guest Contributor
In last week’s judgment in Assange v The Swedish Prosecution Authority [2012] UKSC 22, the Supreme Court decided that the words ‘judicial authority’ in s 2(2) of the Extradition Act 2003 include prosecutors as well as courts. This was because the European Arrest Warrant (EAW) Framework Decision, to which the Part 1 of 2003 Act gave effect, uses the expression in that broad sense, and the presumption is that Parliament meant the same thing (summary here).
The EAW Framework Decision has always guided the interpretation of the Part 1 of the 2003 Act. Until Assange, there were two different reasons for this: (i) a domestic rule of statutory interpretation; and (ii) the rule expounded by the Court of Justice of the EU in Case C-105/03 Criminal proceedings against Maria Pupino.
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6 June 2012 by Rachit Buch
Last week the UN Human Rights Commissioner published the draft report of the second Universal Periodic Review (UPR) of the UK’s human rights record (draft report here, webcast of the UPR session here). The UPR involves delegations from UN member states asking questions and make recommendations to the UK government on the protection of human rights, which the government will consider before providing its response. The report is extremely wide-ranging, perhaps to its detriment, though many valuable and interesting insights are provided.
The UPR process was established in 2006. It involves a review of all 192 UN member states once every four years. As readers of this blog will know, the protection of human rights has a troubled recent history in the UK, with newspaper campaigns against “the hated Human Rights Act” providing the background to government pronouncements on human rights that veer from the sensible to the ridiculous. In this context, the UPR provides a valuable attempt at a serious assessment of human rights in this country.
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5 June 2012 by David Hart KC
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011,
A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.
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5 June 2012 by Adam Wagner
Updated | In stark contrast to the pageantry surrounding the Royal Jubilee, here is a somewhat sombre update on the Justice and Security Bill, which was published on 28 May 2012 and is currently receiving its second reading in the House of Lords. The Bill aims to introduce Close Material Procedures, that is secret hearings, into civil trials.
Three key documents were published shortly after the Bill, presenting the Government’s case in response to the forceful criticism which the initial proposals generated. First is the Government’s response to the Joint Committee on Human Rights’ scathing report on the proposals. Secondly, the Government’s response to the 90 submissions received in response to the Justice and Security Green Paper consultation. Thirdly, a summary of European Convention on Human Rights issues relating to the Bill, also published by the Government.
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4 June 2012 by Wessen Jazrawi
Welcome back to the UK Human Rights Roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The big news this week has been the unexpected turn of events in the Assange extradition case. Almost immediately after the Supreme Court handed down its judgment that he could be extradited, his counsel Dinah Rose QC threw a spanner in the works… The upshot is that it looks like Assange shall be sticking around for at least another couple of weeks. The other significant news of the week is that the Government has published the Justice and Security Bill.
by Wessen Jazrawi
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31 May 2012 by Rosalind English
Catt v Commissioner of the Police of the Metropolis [2012] EWHC 1471 (Admin) – read judgment
Retention of data on a national database of material relating to a protester’s attendance at demonstrations by a group that had a history of violence, criminality and disorder, did not engage Article 8 of the Human Rights Convention.
The claimant, now aged 87, applied for judicial review of the decision of the defendants to retain data, seeking an order that, as he had not himself been engaged in criminality, any reference to him should be deleted from the allegedly unlawfully retained material.
Background
The data in issue was essentially comprised of records (or reports) made by police officers overtly policing demonstrations of a group known as “Smash EDO”, which carried out a long-running campaign calling for the closure of a US owned arms company carrying on a lawful business in the United Kingdom. Disorder and criminality had been a feature of a number of the protests along with harassment of the company’s staff. The defendant authority had retained data relating to the claimant’s attendance at various political protests on the National Domestic Extremism Database, and maintained by the National Public Order Intelligence Unit.
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31 May 2012 by Rosalind English
Mohammed Othman v Secretary of State for the Home Department, 28 May 2012 – read judgment
This was a further application for bail to the Special Immigration Appeals Commission (SIAC) after the appellant had failed in his application to the Grand Chamber of the Strasbourg Court earlier this month, but had launched an appeal to be heard by SIAC, against the Home Secretary’s refusal to revoke his deportation order.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
A full hearing will take place in October. Until then, bail has been refused and Abu Qatada will remain in detention.
Given the evidence before him, Mitting J had to base his judgment on the assumption that the Secretary of State would not have maintained the deportation order unless convinced that she was in possession of material which could support her resistance to the appellant’s appeal and which could satisfy “the cogently expressed reservations of the Strasbourg Court about the fairness of the retrial”which the appellant would face in Jordan.
Two consequences flowed from these developments, according to the judge. One is that SIAC’s final decision in October is likely to put an end to this litigation. The second is that the risk of Qatada absconding has increased, if he assumes, in the light of the expressed determination of the Secretary of State, that he would not avoid deportation to Jordan by litigation in and from the United Kingdom.
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31 May 2012 by David Hart KC
Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment
Today, the Supreme Court held that Julian Assange should be extradited to Sweden for alleged rape. This is subject to further submissions on one point (concerning the Vienna Convention on Treaties), well covered by Joshua Rozenberg in his post on the lively proceedings when the judgment was handed down.
The whole of the appeal turned on one technical point, simple to state, but it took the Court 266 paragraphs to answer. Was the European Arrest Warrant which triggered the extradition request signed by a”judicial authority,” given that it was signed by a prosecutor? Most English lawyers, unburdened with the detail, would say – no, a prosecutor is not a judicial authority, indeed he or she is the opposite of that, a party. But, according to the Supreme Court, they are wrong, and so are the ministers who told Parliament that a judicial authority has to be some sort of judge or court.
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30 May 2012 by Rosalind English
R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
Background
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
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