Category: LEGAL TOPICS

Whose voices count in our human rights debate? – Sanchita Hosali

10 December 2012 by Guest Contributor

Today is Human Rights Day, marking the adoption of the Universal Declaration of Human Rights.  Sanchita Hosali, from the British Institute of Human Rights, an independent charity working to bring rights to life beyond the statue books and courtrooms, reflects on our domestic human rights debates and those voices that are often missing from the conversation.

Last week saw 72 MPs vote in favour of a motion to repeal the Human Rights Act. So today, on Human Rights Day, 72 civil society groups have written to the Prime Minister and Deputy Prime Minister urging them to safeguard the Human Rights Act.  As we await the report from the Commission on a UK Bill of Rights, what unites these 72 groups is concern and disappointment that “what should be a healthy debate about how best to secure the human rights of each and every one of us has, for far too long, lacked political leadership.” This “jeopardises the progress we have made at home in ensuring that our human rights obligations lead to real change for people in their everyday lives.”

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Culling seals to protect farmed salmon: what should we be allowed to know?

8 December 2012 by David Hart KC

Global Alliance Against Industrial Aquaculture v. Scottish Ministers, 26 November 2012    read decision

An interesting and robust decision from the Scottish Information Commissioner. An NGO (just look at the tin) asked the Scottish Ministers for information about seal culling licensed by them. The Scottish Ministers did not provide all the information sought; they said which companies had received the licences, and the total number of seals killed, but did not say who killed how many seals where – thus, doubtless, stymieing any focussed debate and engagement by the NGO on the justification for the killings. The industry’s position appears to be that such shootings only took place against occasional rogue seals.

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Allowing religious gay marriages will avoid human rights challenges

7 December 2012 by Adam Wagner

The Prime Minister has announced his support for gay marriage in religious institutions. Having already said, memorably, that “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative”, he has now gone a step further and argued that gay couples should be able to marry on religious premises. But, he also made clear, “if there is any church or any synagogue or any mosque that doesn’t want to have a gay marriage it will not, absolutely must not, be forced to hold it“.

The announcement is important in the context of a legal debate which has been taking place since the Government signalled that marriage law reform was on its agenda: namely, whether religious institutions would be forced, as a result of equalities and human rights legislation, to carry out gay marriage ceremonies whether or not they wanted to. In June, when the Government was consulting over the “equal civil marriage” plans, Church of England sounded the alarm 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”

What is really interesting about the Prime Minister’s announcement is that the Government is now going beyond  its original proposals as set out in the June consultation. At that point, the Government was careful to state that the proposals related only to civil (that is, non-religious) marriage and, indeed said:

Priests are not press meat, says Strasbourg

5 December 2012 by Rosalind English

Verlagsruppe News Gmbh and Bobi v Austria (Application no. 59631/09) HEJUD [2012] ECHR 2012 (04 December 2012)

Hard on the heels of the Facebook case, here is another legal dust up over the media’s sharp interest in any story involving allegations of inappropriate sexual relations, particularly in the Catholic church.

Following a police investigation into internet downloads, the principal of a Roman Catholic seminary in Austria became the target of unwelcome interest from the tabloid press, including the second applicant, who published a series of articles and photographs alleging that  Mr Küchl was engaging in homosexual relations with the seminarians. One article identified the seminarian principal, whose face was clearly identifiable from the accompanying photograph. The article was entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”
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Judge strikes down Facebook page “Keeping our Kids Safe From Predators”

5 December 2012 by Rosalind English

X v Facebook Ireland Ltd [2012]   NIQB 96 (30 November 2012)   – read judgment

This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the  “wild west” of the internet and the question of social media regulation.

This short  judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,

The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.

Background to the case

The plaintiff  (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith. 
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Should any genetic information be a trade secret?

3 December 2012 by Rosalind English

I posted previously on the decision by the   US Court of Appeals for the Federal Circuit to uphold the patents on the genetics company Myriad’s gene sequences for breast cancer research and therapy. In September 2012 the American Civil Liberties Union once again petitioned for Supreme Court review.  The Court should decide today whether to review the case.

The whole question of proprietary claims over genetic information is not limited to patents and is very much open to debate.  In my piece on the US Bioethics Commission’s report to the Obama administration I discussed the challenge faced by lawmakers in regulating the increasing flow of genomic information so as to protect people’s privacy without shutting down the flow of data vital to biomedical research. Whilst it is true that the availability of patent protection creates vital incentives for such research, genetic testing companies like Myriad can extend their exclusivity beyond their patented products by creating limiting access to private databases containing information vital to interpreting the clinical significance of human genetic variations. There is concern that this threatens to impede the clinical interpretation of genomic medicine. The Genomics Law Report Journal reports that

National health systems and insurers, regulators, researchers, providers and patients all have a strong interest in ensuring broad access to information about the clinical significance of variants discovered through genetic testing.
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Mail finds new love for Human Rights Act

2 December 2012 by Adam Wagner

You know those films where a couple spend the first two acts hating each other until, possibly at night when it is raining, they realise they have been in love all along? It seems that following the Leveson Inquiry report, a winter romance is developing between the Mail on Sunday and the Human Rights Act.

In Bombshell by Leveson’s own adviser: His law to gag press is illegal as it breaches Human Rights Act, the Mail reveals an interview with Shami Chakrabarti, director of human rights advocacy organisation Liberty and also advisor to the Leveson Inquiry, in which she argues that any new law that made the government quango Ofcom the ‘backstop regulator’ with sweeping powers to punish newspapers would violate Article 10 of the European Convention On Human Right, which protects free speech (Update: for more, see this post by Hugh Tomlinson QC – he disagrees with Chakrabarti, although also points out she has been misrepresented).

It only seems like a few months ago (actually, it was only a few months ago) that a Mail editorial thundered: Human rights is a charter for criminals and parasites our anger is no longer enough. As Private Eye might say… just fancy that!

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The Leveson Report is here!

29 November 2012 by Adam Wagner

The Leveson Report into the Culture, Practice and Ethics of the Press has been published. The full report (in four parts) is here. The Executive Summary is here. Thankfully, unlike the artist’s impression which accompanies this post, it is not written in early Hebrew script [Update – this post originally, wrongly, identified the text as Greek. That will teach me for trying to be clever…].

UK not doing enough to combat human trafficking and domestic slavery

28 November 2012 by Alasdair Henderson

C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD [2012] ECHR 1911 – read judgment here.

The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery. 

Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).

Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking –  is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.

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How to keep children anonymous in personal injury cases

28 November 2012 by Rosalind English

MXB v East Sussex Hospital Trust – read judgment

Elizabeth-Anne Gumbel QC of 1 Crown Office Row acted for the claimant in this case. She has nothing to do with the writing of this post.

In personal injury proceedings involving a child it was appropriate to grant an anonymity order  prohibiting her identification since it would defeat the purpose of the proceedings to ensure that she received and kept compensation awarded for her injuries.

Publication of her name was not in the public interest, and the curtailment of her and her family’s right to respect for their private and family life that would occur could not be justified.
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Hugely important report due imminently… no, not that one

28 November 2012 by Adam Wagner

Remember the Commission on a Bill of Rights? You know, the one set up by the Government in the early days of the Coalition to sort out the Human Rights Act? No, not the Leveson Inquiry; that’s about the media (you may have heard that it is reporting tomorrow). CBOR is the one with the eight lawyers, four selected by each of the Coalition partners, a bit like a legal Brady Bunch.

Some accused the Government of kicking the rights issue into the long grass by assigning it to a commission with a far away reporting date – the end of 2012. It seemed so far away, back in the halcyon summer of 2010. Remember David Cameron and Nick Clegg’ romance in the Rose Garden?

Well, the long grass has now grown and CBOR is due to report in just over a month. As I posted in July, the Commission has consulted the public for a second time. The responses have now been published, categorised into Individual responses, Respondent organisations and bodies and Postcard responses. In case you were wondering about the ‘postcard responses’ these resulted from campaigns organised by the British Institute of Human Rights and the Human Rights Consortium.

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Habitats: how to stop death by a thousand cuts

27 November 2012 by David Hart KC

Sweetman v. An Bord Pleanala, CJEU, Advocate-General Sharpston, 22 November 2012 read opinion 

In May 2012 the Habitats Directive celebrated its 20th birthday. It has been under a good deal of flak over the years, particularly from business interests both in and out of government. The reason is plain. The Directive has made member states identify important sites in their territories to the EU (with a certain amount of prodding on the way). It then tells them to keep those sites unaffected by development save in exceptional cases, where there is overriding public interest in the project, there is no alternative solution and, further, that there can be full compensation for the losses caused by the development.

So a member state cannot routinely fudge things against protected habitats in favour of whatever other public interest may be uppermost at the time – wind farms, or supermarkets or chemical works or residential newbuild on greenbelt, for instance. In all but exceptional cases (see here for my post on a proposal which was said to be exceptional), you must not adversely affect the site.

Now for this powerful system of protection in practice, thanks to a tour d’horizon (and de force) by the Advocate-General.

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Secret Courts remixed: any better than the original? – Angela Patrick

26 November 2012 by Guest Contributor

This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.

As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.

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Debating the Abu Qatada affair – Gavin Phillipson

26 November 2012 by Guest Contributor

I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days.

It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the European Convention on Human Rights (ECHR) itself must seemingly be taken as a serious possibility, depending on the outcome of the next election.  The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter?

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“Murder most foul”: whole life imprisonment not a human rights breach

22 November 2012 by Rosalind English

Oakes and others v R [2012] EWCA Crim 2435 – read judgment

The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.

Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term,  a jurisdiction of last resort in cases of exceptional criminality.

It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.

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