Category: BLOG POSTS
26 February 2012 by Sam Murrant
Welcome back to the 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.
In the news
Legal aid reforms
The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.
UKHRB news
In exciting news for this blog, UKHRB editor Adam Wagner has been appointed to the Attorney-General’s C panel of Counsel. See here for more detail on what this involves.
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26 February 2012 by Henry Oliver
Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – Read judgment
The European Court of Human Rights has held that a group of Somalian and Eritrean nationals who were intercepted by Italian Customs boats and returned to Libya fell within the jurisdiction of Italy for the purposes of Article 1 of the European Convention on Human Rights . The return involved a violation of Article 3 (Anti-torture and inhumane treatment), Article 4 of Protocol 4 (collective expulsion of aliens), and Article 13 (right to an effective remedy). The patrols that returned migrants to Libya were in breach of the non-refoulement principle.
The applicants were eleven Somalian nationals and thirteen Eritrean nationals who were part of a group of two hundred migrants who left Libya in order to reach the Italian coast. On 6th May 2009 Italian ships intercepted them 35 miles south of Lampedusa and returned them to Triploi, in Libya. During the voyage the migrants were not told where they were going (they assumed they were being taken to Italy), nor were they identified.
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23 February 2012 by Maria Roche
News of the deaths of Sunday Times reporter Marie Colvin and French photographer Remi Ochlik and the serious injuries of photographer Paul Conroy and Edith Bouvier, a freelance journalist reporting for Le Figaro, from a mortar shell that hit the building in Homs, Syria that they were using as makeshift media centre has saddened and shocked reporters and readers. So does a sobering list of more than fifteen of their professional colleagues who have also died reporting the Arab Spring. Worse still are reports that the journalists may have been deliberately targeted by the Syrian government forces. It is a reminder that journalists are offered too little protection by international law.
It is clear from the many tributes to her that Ms Colvin was an extraordinary person: a woman of verve, replete with humanity, she was fearless in the face of carefully assessed and weighed risk. In 2001 after losing an eye in a grenade attack by a Sri Lankan government soldier whilst reporting on the Tamil Tigers, she wrote:
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22 February 2012 by Karwan Eskerie
Hurley and Moore v Secretary of State for Business, Innovation and Skills [2012] EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties.
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22 February 2012 by Rosalind English
R v N; R v LE [2012] EWCA Crim 189 – read judgment
This was the first occasion when the Court of Appeal has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force in 2005 of the European Convention on Action against Trafficking in Human Beings . In this particular case the Court concluded that the Crown Prosecution Service was entitled to prosecute foreign national youths with drug offences, despite the UK Border Agency accepting that they may have been smuggled or trafficked into the UK. But it sets out clear principles and authorities for the application of the protective mechanism of the Trafficking Convention for future prosecutions where there is evidence of human trafficking.
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22 February 2012 by Adam Wagner
The Trade Union Congress have sent me the full letter (download here) which Education Secretary Michael Gove sent to its leader Brendan Barber in relation to a complaint about seemingly homophobic booklets distributed to Roman Catholic schools in Lancashire. The letter which Mr Barber sent to Mr Gove is here.
I complained in this post that the excerpt of the response published by The Observer appeared to misunderstand the provisions of the Equality Act which apply to schools. I also said that the quote in the article could have been out of context. In short, it was. Here is the full paragraph, which presents a much fairer representation of the law:
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20 February 2012 by Wessen Jazrawi
Welcome back to the human rights roundup, your recommended 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.
In the news
Religion and the State
Following on from last week’s ruling from the High Court that Christian prayers held before a council meeting were unlawful, the Court of Appeal this week upheld a ruling that two Christian hotel owners had discriminated against gay clients by not offering them a double room.
In yet other news, the Education Secretary Michael Gove is embroiled in a row concerning the distribution in schools of a booklet containing homophobic material. In response to complaints, Gove has insisted that the education provisions of the Equality Act 2010 do not extend to the content of the curriculum. For an analysis of why Gove is incorrect on this score, see Adam Wagner’s post.
by Wessen Jazrawi
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19 February 2012 by David Hart KC
Solvay, CJEU, 16 February 2012 read judgment
This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.
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19 February 2012 by Adam Wagner
Updated, 20 Feb 2012 | Following the news recently it would seem that the UK is convulsed by a raging battle between religious observers and, in the words of Baroness Warsi, militant secularists. On the same day, the High Court ruled that Christian prayers held before a council meeting were unlawful, and the Court of Appeal upheld the decision of the High Court that two Christian hotel owners had discriminated against gay clients by not offering them a double room.
Today’s spat, according to The Guardian, involves a letter sent to the Education Secretary Michael Gove by the Trade Union Congress leader “expressing alarm that a booklet containing “homophobic material” had been distributed by a US preacher after talks to pupils at Roman Catholic schools across the Lancashire region in 2010.” From the quotes provided in The Observer, the book sounds pretty offensive:
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19 February 2012 by Guest Contributor
Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment
On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.
For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful. To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).
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17 February 2012 by Richard Mumford
Sir Stephen Sedley, until last year of the Court of Appeal, has launched a stinging rebuttal to the speech of Lord Sumption (Jonathan Sumption QC as was) in which the soon-to-be Supreme Court Justice rebuked the judiciary for failing to stay out of the political arena.
This blog covered Lord Sumption’s speech here. Sir Stephen’s response in the London Review of Books takes issue with Lord Sumption’s assertion of excessive judicial interference in political matters, with the words:
there is a repeated insinuation that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen.
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16 February 2012 by Guest Contributor
R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party) [2012] EWHC 147 (Admin) – read judgment.
In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings. The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.
He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR.
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15 February 2012 by Rosalind English
There are those who think that the Strasbourg Court sometimes talks through its fundament. Others are of the view that the sun shines out of it.
This may of course have something to do with the Court’s jurisdictional basis, whose proper name is the Convention for the Protection of Human Rights and Fundamental Freedoms. Be that as it may, over the years the Court has become increasingly inclined to describe so many rules, principles, aspects of people’s relationships with each other and sundry other understandings and agreements of civil society as “fundamental” that the word has ceased to resonate with its original meaning as basic, essential, primary, central, or even foundational.
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15 February 2012 by David Hart KC
Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment
This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.
As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.
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15 February 2012 by Adam Wagner
Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation (Respondent) [2012] UKSC 4 – Read judgment / press summary
The Supreme Court has ruled unanimously that an internal BBC report into its coverage of the Israeli Palestinian conflict was “information held for the purposes of journalism, art or literature” and therefore need not be released to the public under the Freedom of Information Act (FOIA).
Four of the justices were of the view that even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of the FOIA. Lord Wilson however, was of the opinion that if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes. The BBC will be relieved that the “partly” view prevailed, as the “predominately” test might in practice have brought a lot of internal documents within the scope of the FOIA.
The “Balen Report” was commissioned by the BBC in 2004 by a senior broadcast journalist, Michael Balen. It was commissioned following allegations of bias in the coverage. Mr Sugar, a solicitor, applied to see the report under the Freedom of Information Act 2000. The BBC argued that the report was “information held for the purposes of journalism, art or literature” and therefore fell outside of the Act under the terms of section 7 of Schedule 1 to the Act.
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