Category: CONVENTION RIGHTS
6 March 2012 by Andrew Tickell
Brought to you by Andrew Tickell
Mary Teresa Doogan & Concepta Wood [2012] CSOH 32 – Read judgment
“For the want of a nail, the shoe was lost, for the want of a shoe the horse was lost, for the want of a horse, the rider was lost, for the want of a rider, the message was lost, for the want of the message, the battle was lost, for the want of the battle, the kingdom was lost, and all for the want of a horse shoe nail”.
A proverbial lesson in causation, and one pressed into service by Lady Smith in the Court of Session in Scotland last week, in a judgment rejecting the judicial review petition of two Catholic midwives employed at a major Glasgow hospital.
Seeking review of Greater Glasgow and Clyde Health Board’s rejection of their grievances, the pair contended that the conscientious objection provisions of the Abortion Act 1967 – which provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection” – was not limited to ‘direct’ participation in abortions, but entitled them to refuse to delegate to, supervise or support staff on their labour ward who were directly involved in medical terminations. Horse shoe nail.
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5 March 2012 by Rosalind English
Merchant International v Naftogaz International [2012] EWCA Civ 196 – read judgment
The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.
In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention.
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1 March 2012 by Adam Wagner
Yesterday I spoke at Justice Wide Open, an excellent conference organised by Judith Townend. I mounted my usual open justice hobby horses (to coin a topical phrase) on how to make the justice system more accessible to the public, including a moan about human rights reporting. Someone told me during the break that according to her research, when newspapers put a positive slant on a human rights story, they tend to use the code word “civil liberties”. And, as if to prove the point, on the very same morning the Daily Mail put its considerable weight behind a crucial but until now sub-public-radar “civil liberties” and open justice issue, the Justice and Security Green Paper.
As readers of this blog will be aware, the Government proposes in the Green Paper to introduce “closed material procedures” into civil proceedings. For an explanation of why this amounts to “a departure from the foundational principle of natural justice“, look no further than the Special Advocates’ response to the consultation and my co-editor Angus McCullough QC’s post, A Special Advocate’s comment. But although the proposals have been getting lawyers and The Guardian hot and bothered, the sound of tumbleweed has been the loudest response. Until now, that is.
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1 March 2012 by Adam Wagner
The Ministry of Justice has proposed two important amendments to the Legal Aid, Punishment of Offenders and Sentencing Bill.
As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.
As to domestic violence, the amendments are to provide legal aid for civil claims where:
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1 March 2012 by Adam Wagner
Not me giving evidence to the Leveson Inquiry
Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. You can download the entire statement here, The questions in bold are those asked by the Inquiry in their request – read part 1 here.
On similar topics, I also recommend the statements of Francis FitzGibbon QC and David Allen Green.
(10) Does/Can blogging act as a check on bad journalism?
Yes. The primary reason UKHRB was set up was to act as a corrective to bad journalism about human rights, and in under two years it has become a trusted source of information for journalists, politicians, those in government and members of the public.
UKHRB operates alongside a number of other excellent legal blogs, run by lawyers, students and enthusiasts for free, which provide a similar service in respect of other areas of law. I would highlight, for example[2]:
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29 February 2012 by Leanne Buckley-Thomson
The Mayor Commonality and Citizens of London – v – Samede, Barda, Ashman, Randle-Jolliffe, Moore and Persons Unknown [2012] EWCA Civ 160 – Read judgment
Members of the Occupy London Movement who have been occupying an area close to St Paul’s Cathedral have had their applications for permission to appeal the decision of the lower court to evict them refused by the Court of Appeal. The judgment of Mr Justice Lindbolm was deemed ‘very full and careful’by the Master of the Rolls. Shortly after midnight yesterday police began evicting occupants at the site.
In January we reported on the High Court battle between the City of London and the Occupy London Movement who had been occupying an area close to St Paul’s Cathedral. Mr Justice Lindbolm’s well-reasoned decision to grant possession, interlocutory and declaratory relief to the Mayor Commonality and Citizens of London meant that the Occupy Movement were to be evicted.
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29 February 2012 by Adam Wagner
Not me giving evidence
Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. Yesterday it was “read into evidence”, which means I can now publish it. You can download the entire statement here, and I have reproduced (what I think are) the interesting bits below and in a follow-up post. The questions in bold are those asked by the Inquiry in their request. I have not been asked to give oral evidence.
The extent to which you consider what ethics can and should play a role in the blogosphere, and what you consider ‘ethics’ to mean in this context.
The definition of “blogging” is now extremely wide, so much so that the term “blog” has become in essence meaningless.
A blog can be a “web log” within the original meaning of the word, that is a “personal journey published on the World Wide Web consisting of discrete entries (“posts”)” (Wikipedia), but it can also be a news and comment website such as UKHRB, a photo-sharing website, a website promoting a business – practically any website can call itself a blog. Mainstream newspapers now produce “blogs” online and as such the boundary between traditional journalism and blogging has also become unclear.
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28 February 2012 by Rachit Buch
Why should we bother with the European Convention on Human Rights? Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation. UCL’s Professor Richard Bellamy attempted to answer this question at the Statute Law Society’s talk on Monday evening. He said that the UK should abide by the ECHR, which gains its legitimacy by being the best way for democratic states regulate their relationships and protect their citizens’ rights.
The talk was entitled ‘The Democratic Legitimacy of International Human Rights Conventions’ (IHRCs). Although perhaps not in such terms, this is a topic that exercises many every week: from those questioning who exactly decides which human rights are the ones that count, to those asking why ‘unelected judges’ in Europe can tell a democracy how to govern itself. Professor Bellamy started by noting that mature democracies are generally less keen on IHRCs; at the post-war inception of the ECHR, he said it was Germany and Italy showing most enthusiasm. Even now, many ‘democratising’ countries show less opposition to Europe’s human rights structures.
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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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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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