Category: BLOG POSTS
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:
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5 August 2010 by Adam Wagner
We recently started adding links to interesting new articles and case-law on the right the sidebar under the heading “Selected news sources”.
As of last week, these articles now appear on our Twitter feed (@ukhumanrightsb) too. Below is a quick rundown of the most recent links. The full list of links can be found here.
- 4 Aug | European Court Rules on Prohibited Weapons in Armed Conflict, Retroactivity: This is a case about the supply of mustard gas to Saddam Hussein, in the European Court of Human Rights. A man prosecuted for supplying thiodiglycol (mustard gas). He complained under Article 6 of the Convention that the Dutch Supreme Court had failed to answer his argument that since Saddam Hussein and Ali Hassan al-Majid al-Tikriti were beyond the jurisdiction of the Netherlands courts, he ought not to have been convicted as their accessory. He also complained under Article 6 or Article 7 of the Convention that section 8 of the War Crimes Act did not meet the standard of lex certa (certain law). Both arguments were rejected and the application declared inadmissible [see paras 68ff and 96]
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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.
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4 August 2010 by Rosalind English
W(Algeria) and 7 Others v Secretary of State for the Home Department [2010] EWCA Civ 898 (Jacob LJ, Sullivan LJ and Sir David Keene) 29 July 2010 – read judgment
Article 6 of the Convention did not require an “irreducible minimum of information” that had to be provided to appellants in proceedings before the Special Immigration Appeals Commission about the risk they posed to national security.
In their appeal against decisions of the respondent secretary of state to deport them on grounds of national security (upheld by the Special Immigration Appeals Commission (SIAC)) the appellants all claimed that they would be at risk of ill-treatment if they were deported. They had obtained relevant information which had been provided on the understanding that it could only be made available if there were clear guarantees that it would not become known to their national government.
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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.”
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3 August 2010 by Adam Wagner
Worth lying for?
(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling
The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.
The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.
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2 August 2010 by Adam Wagner
Updated (4 Aug 2010)
Army generals are notorious for fighting the last war instead of the current one. Human rights campaigners may be in danger of the same mistake if they get their strategy wrong for the new coalition government.
The great civil liberties fight of the last decade centered on New Labour’s anti-terrorism measures. Keystone issues such as stop and search, 42-day detention without charge and control orders caught the public imagination and have been the subject of bitterly fought and largely successful campaigns by rights groups.
The other significant fights have been over the so-called surveillance state; for example CCTV, the DNA database and ASBOs, all of which are now being considered for reform by the new government.
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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.
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2 August 2010 by Adam Wagner
For those of you looking for more information on last week’s Supreme Court judgment on UKIP party funding (see our previous post), we have been sent an interesting analysis of the judgment from Lucy Colter at Four New Square Chambers.
Patrick Lawrence Q.C. and Can Yeginsu, also of Four New Square, appeared for UKIP. The judgment was only of tangential importance in respect of human rights, but Coulter addresses this towards the end of her article. The main point was that a court in future would have leeway as to how much it could order a party to forfeit. As such, the court was satisfied that the party funding legislation is sufficiently flexible so as not to contravene human rights law:
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30 July 2010 by Adam Wagner
Morley & Ors v. R [2010] EWCA Crim 1910 – Read judgment
Four former Members of Parliament have failed in their appeal of a Crown Court ruling preventing them from claiming parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal.
The appeal was of Mr Justice Saunders’ ruling in the Southwark Crown Court that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses. He had said that he could “see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either.”
The Lord Chief Justice gave the judgment of the court, and made clear that Parliamentary privilege was simply not designed to protect these four men from the allegations currently against them:
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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.
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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).
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29 July 2010 by Adam Wagner
R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment
The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.
The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.
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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.
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27 July 2010 by Adam Wagner
The Electoral Commission has released its full report into the events surrounding the May 2010 election during which thousands of voters were barred from polling stations due to administrative problems.
The Commission, whose report can be downloaded here, has used the fiasco as a chance to emphasise and bring forward its reform program. The watchdog reports that the Election was generally well run, but that:
Queues formed at several polling stations on polling day (6 May), and some people in those queues were unable to vote when the polls closed at 10pm. Just over 1,200 people were affected at 27 polling places in 16 constituencies. The main contributory factors were poor planning, the use of unsuitable buildings, inadequate staffing arrangements and the failure of contingency plans.
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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. 
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