Category: CONVENTION RIGHTS
9 August 2010 by Adam Wagner
The Strasbourg court
A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.
The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.
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6 August 2010 by Adam Wagner
In happier days
A database which was to hold the details of every child in England will be switched off at noon today, but the uneasy relationship between social services, the government and the courts in child protection matters still remains.
The closure of the £224 million scheme marks a victory for human rights and privacy campaigners as well as the fulfilment of a longstanding promise by the coalition partners.
The ContactPoint Database was set up in the wake of Lord Laming’s 2003 Victoria Climbié Public Inquiry, which recommended, amongst other major changes in child protection policy, that the government should investigate the setting up of “a national children’s database on all children under the age of 16.” Victoria Climbié died in 2000 at age 8 after being abused by her guardians. In the trial of her guardians which followed her death, the judge described the response of local authorities as “blinding incompetence”.
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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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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
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
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 appropriate logo
The Supreme Court has narrowly held that the UK Independence Party (UKIP) can keep nearly all of a £349,216 donation despite the donor not being a permissible donor at the time of receipt, contrary to party funding rules under the Political Parties, Elections and Referendums Act 2000.
The Supreme Court upheld an order originally made at the City of Westminster Magistrates Court to the effect that the party only had to give back a small proportion of the money. UKIP will now only have to forfeit £14,481, rather than the full amount. According to the BBC, this will save the party from financial ruin. We will have more detail on the decision, which was by a narrow 4-3 majority, soon. In the meantime, the Supreme Court press summary can be found here, and is reproduced below.
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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