Category: Margin of Appreciation


Deportation, secrecy and knowing the case against you

1 July 2011 by

IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment

The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life,  requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.

In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.

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The last tango of the fag packet machine?

20 June 2011 by

Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here

Sinclair Collis own cigarette machines, some 20,000 of them. So when cigarette machines were banned by law, there was nowhere for their owners to go, apart from the Courts. On Friday, the Court of Appeal dismissed their challenge to the ban, but there was a powerful dissent from Laws LJ on both the law and its application. This makes the prospect of an appeal to the Supreme Court all the more likely. Even that might not be the end of the line, if the SCt refer the case to Europe.

The case – all 70+ pages of the decision – is an object lesson in how to challenge a ban. But, hang on, some of you will say, how can you challenge a ban once it has become the law? Well, until 1973 you couldn’t. That is when we gained the first way of challenging a law, through joining the EEC and thus taking on the obligation to make our laws EEC-compliant. This was Sinclair Collis’s first string to its bow.  In 2000, the second string arrived – the coming into force of the Human Rights Act.  But there is still no third string – no purely domestic challenge to legislation once enacted – Parliament is still sovereign.

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Does “bringing rights home” mean bringing problems home too?

13 June 2011 by

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

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Control orders and human rights to family life: not always incompatible

1 June 2011 by

CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment

As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.

The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.

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No right to enforce EU air pollution law: only a Crackerjack pencil

31 May 2011 by

More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.

Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General  thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed  – in English.

The problem arose because the EU made two directives which didn’t talk to each other.

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Why be nice? Human rights under pressure

16 February 2011 by

The latest episode in the soap concerning our relationship with Strasbourg may end in a fizzle rather than a cliffhanger, but it has provoked some useful soul-searching about the vision of the good embodied in the ECHR, and its monopoly on the right to govern social life.

Derogating from the ECHR or even pulling out of Strasbourg altogether have ceased to be taboo subjects for discussion, but the fear seems to be that the consequence of such defection would mean reversion to selfish nationalism. Is this a bad thing?

This question is not as facetious as it seems and answering it is central to the long term maintenance of a set of principles by which states agree to live.
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It’s time we packed our bags at Strasbourg, says report

9 February 2011 by

Bringing Rights Back Home is the latest policy document to address the tension between judges and politicians over public policy with human rights implications.

Within hours of  publication of the report,  a hard-hitting academic paper put together by the political scientist Michael Pinto-Duschinsky, criticism started pouring in, and there will be no doubt more huffing and puffing to come.

But before these lofty admonitions stifle them, it is worth considering some of the paper’s objections and proposals.   These are legitimate points made in a political debate which has been masquerading for years as a legal one.  The document is essentially uncontroversial, in legal terms.
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Analysis: Costs Regime in Peril after Strasbourg Naomi Campbell Ruling

19 January 2011 by

MGN Limited v The United Kingdom – (Application no. 39401/04) Read judgment

The details of the Court’s ruling are set out in our previous post on this case. The following analysis focusses on the success of the newspapers’ core complaint concerning the recoverability against it of 100% success fees.

This judgment has serious practical implications not just for publication cases but for any civil case not covered by legal aid, and although the ruling is only binding on the government, not on the courts, the potential for its immediate domestic impact cannot be ignored. Defendants challenging costs orders will have this judgment at the head of their arsenal from today; the practical resonances of the case are imminent.

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Ireland must make access to abortion easier in life threatening situations

16 December 2010 by

CASE OF A, B AND C v. IRELAND (Application no. 25579/05) – Read judgment / press release

The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.

The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.

Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.

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European states will not be forced to allow gay marriage

30 November 2010 by

Schalk and Kopf v. Austria (application no. 30141/04) – Read judgment / press release / press release 2

The European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria. The effect of the decision is to make the court’s rejection of the same-sex couple’s claim final.

The decision means that the European Court of Human Rights will not force states to allow same-sex couples to marry, for now at least. This has a potential bearing on the UK, where a number of same-sex and heterosexual couples are currently bringing claims against UK laws which permit civil partnerships for same-sex couples but prevents them from marrying.

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The Karlsruhe Judges with Real Teeth

9 November 2010 by

As we have seen from the recent ruling from the Supreme Court in Pinnock, British judges regard themselves as constrained to follow a “clear and consistent” line of authority from Strasbourg, even though the latter has  no binding authority over the appellate courts in this country. Indeed, as we have noted in our post on the case, it overruled three of its own precedents without any ado.

How different the picture is in Germany, where the highest Constitutional Court, the Bundesverfassungsgericht, is armed with tremendous powers by the German Grundgesetz, or Basic Law, to uphold its own interpretation of national law in judgments that go to the heart of what the executive is or isn’t allowed to do.

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Case comment: Human rights, proportionality and local authority evictions

5 November 2010 by

Updated | We posted earlier on the Supreme Court ruling in Manchester City Council (Respondent) v Pinnock (Appellant), that requires courts to be satisfied that any order for possession sought by local authorities must be “in accordance with the law”, and (ii) “necessary in a democratic society” – that is, that it should be proportionate in the full meaning of the word.

How far this takes us from the previous position, where the role of the county court was limited to conducting a conventional judicial review of the councils’ decision in such cases, remains to be seen.

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Law to change on terrorist asset freezing after critical Supreme Court judgment

3 November 2010 by

On 1 November 2010 the Terrorist Asset-Freezing etc. Bill received its third reading in the House of Lords. The bill, which started in the Lords, must now be passed by the Commons before receiving Royal Assent.

The Bill represents the coalition government’s response to the Supreme Court’s decision in HM Treasury v Ahmed (incidentally, the first appeal to have been heard in the Supreme Court) concerning the lawfulness of measures enabling the Treasury to freeze the assets of, amongst others, a person whom it has reasonable grounds for suspecting is or may be a person who facilitates the commission of acts of terrorism.

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Courts reluctant to intervene over care for elderly and disabled

2 November 2010 by

Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment

The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.

In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.

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Gurkha defeat in claim for equal pension rights

18 October 2010 by

No victory this time

R (British Gurkha Welfare Society and ors) v Ministry of Defence [2010] EWCA Civ 1098 – read judgment

The Court of Appeal has rejected a fresh attempt, based on Article 14 of the European Convention on Human rights (anti-discrimination), to obtain equal pension rights for Gurkhas who served in the British Army before 1997.

The long-running campaign for Gurkha rights has been highly publicised and successful, but it has not ensured equality of treatment in respect of pensions. The MoD continues to calculate  accrued pension rights at a lower rates for Gurkhas than for other soldiers in respect of service performed before 1997, the date on which the majority of Gurkhas ceased to be based in Hong Kong and were instead moved to the UK.

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