Category: Article 8 | Right to Privacy / Family
13 June 2012 by Adam Wagner
The Home Office has released its Statement of Intent on Family Migration, which, amongst other things, makes the position a little clearer on its plans for Article 8 of the European Convention on Human Rights, as discussed in my earlier post (thank you to Obiter J for linking to the document in his post).
In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors, in order to:
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang.
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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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10 June 2012 by Adam Wagner
Tomorrow, the Home Secretary will announce to Parliament plans to give judges guidance on how to interpret Article 8 ECHR (the right to private and family life) in foreign criminal deportation cases. There has been already significant speculation as to whether the long-heralded changes will make much or even any difference.
It is not yet clear whether the Home Secretary intends to restrict the use of Article 8 in foreign deportation cases completely, as suggested here, or rather attempt to tweak the way it is applied by judges. The latter is more likely.
We will report in full when the proposals are revealed. But in the meantime, a quick comment on the slightly odd coverage of the story in the press. For example, the BBC reports:
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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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20 May 2012 by Rachit Buch
As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:
- Create a test of “serious harm” for statements to be considered defamatory.
- Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
- Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
- Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.
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15 May 2012 by Guest Contributor
De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) – Read judgment
This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.
Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.
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9 May 2012 by Guest Contributor
In the UK there are at present no rights expressly cast in terms applicable to climate change, nor have our traditional human rights been extensively interpreted as covering climate change consequences. As David Hart QC identifies in his blog, Is climate change a human rights issue?, human rights principles, to be useful for climate change litigators, have to have some democratic backing somewhere. So is there any hope, in the near future at least, of formally or even informally establishing a link between climate change and human rights in the UK? Is human rights based climate change litigation as ‘radical’ as David Hart suggests?
Consider, for example, the situation where the avoidance of further climate change damage was possible through adequate mitigation and/or adaptation, but where adaptation measures were not implemented due to financial or technical constraints. Leaving aside the issue of whether the State would be liable for a moment, could existing human rights be engaged in this situation?
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9 May 2012 by Rosalind English
The late US law Professor Paul Miller reflected recently that Beethoven, Stephen Hawking and Elton John were examples of individuals whom, if they had been tested for serious genetic conditions at the start of their careers, may have been denied employment in the fields in which they later came to excel.
Earlier this month the Association of British Insurers announced the latest extension on the moratorium on the use of genetic test results for insurance purposes. But is this “Concordat” sufficient protection? Genetic technologies are becoming increasingly available and profound questions are arising in relation to life and health insurance and employability as genetic screening becomes cheaper and widespread.
According to the Human Genetics Commission (HGC)
The advent of cheap whole-genome sequencing, and greatly reduced costs for genetic tests in general, will provide the platform for genetic testing to be used for novel and unpredicted purposes. (Report on The Concept of Genetic Discrimination, Aril 2011)
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16 April 2012 by Rosalind English
MP, R(on the application of) v the Secretary of State for Justice [2012] EWHC 214 (Admin) – read judgment
The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.
Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date.
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15 April 2012 by Isabel McArdle
Balogun v UK [2012] ECHR 614 – Read judgment
It has been a week of victories for the UK government in deportation cases in the European Court of Human Rights. On the same day as the ECtHR found that Abu Hamza and four others could be extradited to the US on terrorism charges, it also rejected a case of a man facing deportation despite having lived in the UK since the age of three.
The applicant, born in 1986, had a number of criminal convictions. The Court accepted that he had been in the UK since the age of three, although he had only acquired indefinite leave to remain in December 2003. In 2007 he pleaded guilty to possession of Class A drugs with intent to supply. He was jailed for three years and later in 2007, he was given notice that the Secretary of State intended to have him deported to Nigeria, as he is a Nigerian national.
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15 April 2012 by Daniel Sokol
Photo credit: cas.sk
Stübing v Germany (no. 43547/08), 12 April 2012 – Read judgment
The European Court of Human Rights (fifth section) has ruled unanimously that Germany did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life) by convicting Patrick Stübing of incest
Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:
Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other. So what do you think about this? Was it wrong for them to have sex?
Most people answered with a resounding yes, supporting their “yuck” response with reasons. Yet, Professor Haidt noticed that many respondents ignored elements of the story.
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11 April 2012 by Rosalind English
Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11), following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says
Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.
Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain
has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade
According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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6 April 2012 by Guest Contributor
Civil liberties and the coalition have been happily filling the political pages this week. The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings (expertly dissected by Rosalind English earlier in the week) vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security.
These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.
After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.
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6 April 2012 by Richard Mumford
DL v A Local Authority & Others [2012] EWCA Civ 253 – Read judgment
Where adults have capacity under the Mental Capacity Act 2005 (MCA 2005), does the “great safety net” of the High Court’s inherent jurisdiction still exist to guard them from the effect on their decision making of undue influence, coercion, duress etc? In its judgment handed down on 28 March 2012, the Court of Appeal confirmed that it does.
DL proceeded in the High Court and the Court of Appeal on assumed (as opposed to agreed) facts, many if not all of which were contested by the appellant. For the court’s purposes however, it was assumed that DL, a man in his 50s who lived with his mother and father (90 and 85 respectively), had behaved aggressively towards his parents, physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes. The Court of Appeal’s judgment uses the term “elder abuse” for such a situation.
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30 March 2012 by Isabel McArdle
Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision
The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.
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