Category: LEGAL TOPICS
8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to 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.
Continue reading →
7 November 2012 by Guest Contributor
In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
Continue reading →
7 November 2012 by Adam Wagner
I have an opinion piece in this week’s Jewish Chronicle, We should support and not condemn Human Rights Act. The “we” in the title is the Jewish community, of which I am a part, although it also amounts to a fairly broad defence of the Human Rights Act.
The article was at first intended as a direct response to an opinion piece by Jonathan Fisher QC entitled The wrongs of human rights, but because of editorial pressures at the Jewish Chronicle it could not be published until a few weeks later, and as such ended up being a more general article. I have already commented on this blog on why I thought the timing of Fisher’s article was a little odd given that the Bill of Rights Commission, on which he sits, was still consulting the public on the very issues he addressed passionately in the article. I said:
Continue reading →
6 November 2012 by Martin Downs
REDFEARN v. THE UNITED KINGDOM – 47335/06 – HEJUD [2012] ECHR 1878 – read judgment / press release
The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”
This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom
The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.
Continue reading →
6 November 2012 by Adam Wagner
A quick note to say that the UK Jewish Film Festival is showing a fascinating new Israeli documentary (with subtitles), The Law in These Parts, this Sunday at 2:30pm at the Tricycle Cinema in Kilburn. The film will be followed by a discussion, chaired by me, between Danny Friedman of Matrix chambers and Jonathan Turner of 13 Old Square chambers. All details are here.
I have seen the film and it is excellent. It is an examination of legal proceedings in the territories occupied by Israel since 1967. The documentary is made up almost entirely of interviews with former judges in Israel’s security courts, including a Supreme Court justice, which in itself of great interest. Although the legal and moral issues faced up to in the film are in one way unique to Israel, many from the UK legal community will recognise themes in relation to Northern Ireland during the Troubles, as well as broader problems which we are still grappling with involving the use of secret evidence and evidence obtained by torture.
In short, one of the best legal documentaries I have seen, and highly recommended (not just by me – Newsweek described it as “a gripping new documentary“). I hope to see you there, do come and say hello if you can make it. Book here – trailer below
Continue reading →
3 November 2012 by Rosalind English
Catholic Care (Diocese of Leeds) v Charity Commission (on appeal to the Upper Tribunal) CA/2010/0007 – read judgment
A private adoption agency could not justify its exclusion of same-sex prospective parents by arguing that this policy would keep open a source of funding that would otherwise dry up and reduce the number of adoption placements.
This was an appeal by the Catholic adoption services agency against the First Tribunal’s confirmation of the decision by the Charity Commission that it was not permitted to amend its constitution so as to permit it to continue its previous practice to refuse to offer its adoption services to same sex couples. Here is our post on the FTT’s ruling, which sets out the facts and arguments in the case. To recap briefly, the charity argued that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR (and its statutory analogy, Section 193 of the Equality Act). The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go unprovided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. The FTT rejected this submission, holding that though the charity’s aim of increasing adoption placements was a legitimate one, the evidence before it did not show that the increased funding of the agency’s adoption work under the auspices of the Roman Catholic church would “inevitably” lead to the prospect of an increased number of adoptions.
Continue reading →
2 November 2012 by Lois Williams
Irene Wilson v. The United Kingdom (Application no. 10601/09) – read admissibility decision
Sadly barely a month seems to go by without a report in the media about the police and the justice system failing to protect the victims of domestic violence.
The Strasbourg Court has been required on a number of occasions to assess whether the response of domestic authorities to domestic violence has been compatible with their positive obligations under Article 8 (right to respect for family and private life) of the Convention. Given that such individuals are of a particular vulnerability, Strasbourg has repeatedly emphasised the need for active state involvement in their protection. However, in this particular admissibility decision, the Court held that the Northern Irish authorities had not failed in their duty under the Convention to protect the applicant.
Background Facts
The applicant, Irene Wilson, was assaulted by her husband after they had been out drinking. She suffered a severed artery on her head, requiring eight stitches as well as multiple bruising. Her husband was arrested and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. He was granted bail and required to reside at an alternative address to the matrimonial home.
Continue reading →
1 November 2012 by Rosalind English
The Queen on the application of Totel Ltd v The First-Tier Tribunal (Tax Chamber) and The Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 1401 – read judgment
Tax litigation is not the most obvious hunting ground for human rights points but if claimants feel sufficiently pinched by what they perceive as unfair rules, there is nothing to stop them appealing to the courts’ scrutiny of the lawfulness of those rules.
Human rights were not raised per se in this appeal but constitutional principles which arguably play the same role made all the difference to the outcome.
This case concerned the removal of a right of appeal by an Order in Parliament that stopped the appellant company (T) in its tracks, so naturally it turned to judicial review to find a remedy that the tax tribunal was not prepared to grant. T prayed in aid a fundamental principle of our unwritten constitution set out in R (Spath Holme Ltd) v Secretary of State for Transport, the Environment and Regions [2000] 2 WLR 15:
Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinised, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach.[35]
Continue reading →
31 October 2012 by Jim Duffy
The Coroners and Justice Act 2009 has created the office of Chief Coroner, plucked at the very last minute from the Coalition’s ‘bonfire of the quangos’. On Friday, the first Chief Coroner, His Honour Judge Peter Thornton QC, delivered The Howard League for Penal Reform’s 2012 Parmoor Lecture.
Six weeks into his post, Judge Thornton presents a frank exposition of the challenges facing the system he now heads, sets out what he considers to be its purpose, and charts its remarkable genesis.
Coroners have, it seems, occupied for the best part of a millennium a peculiar pocket of public life, adapting their function and purpose over time in a manner not always understood by those working outside the system, or even by they themselves. From the Articles of Eyre to the 2009 Act, via Robin Hood and Richard the Lionheart (the latter does not come out well), the Chief Coroner describes how ‘crowners’, as they were originally known, have evolved from lay magistrates or collectors of fines, to the judges they are today.
Continue reading →
29 October 2012 by Rosalind English
X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire [2012] EWHC 2954 (Admin)- read judgment
The High Court has made an important ruling about the disclosure of information under the Child Sex Offender Disclosure Scheme (CSOD).
This non statutory arrangement has been in place since March 2010. It allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The aim of the scheme is described thus:
This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.
Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment.
Continue reading →
26 October 2012 by Guest Contributor
Public Inquiries and inquests have dominated the headlines recently, with members of One Crown Office Row appearing in many of them, including:
- The Leveson Inquiry into the ethics of the press
- The Mid Staffordshire NHS Foundation Trust Public Inquiry
- The Baha Mousa Public Inquiry
- The Al-Sweady Public Inquiry
- The 7/7 Inquests
- The Victoria Climbié Inquiry.
On 8 November 2012 One Crown Office Row will be hosting a mock trial and panel discussion on this important subject. The event will draw on the latest case law concerning the scope of Article 2 investigations, the grounds for a public inquiry, and the test for re-opening inquests.
The speakers will be Neil Garnham QC, Jeremy Hyam, Richard Mumford, Caroline Cross, Adam Wagner and Matthew Hill .
The full flyer for the event is available here (PDF).
There are still a few places remaining to attend this event. If you are currently practising within the field of public and administrative law and/or inquests and would like to attend please contact Charlotte Barrow, Marketing Executive at One Crown Office Row (events@1cor.com) stating your name and organisation. Places will be allocated on a first-come-first-served basis.
CPD has been applied for and debate, drinks and snacks will of course follow.
25 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion
In my post of yesterday, about this opinion of the Adocate-General, I set out the context in which the Supreme Court was asking for guidance from the CJEU on how to provide for costs in environmental cases, given that the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”
As I put it, the first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Roman Abramovich. Any costs liability may deter someone on state benefits.
Continue reading →
25 October 2012 by Rosalind English
Whiston, R (on the application of) v Secretary of State for Justice – read judgment
When a prisoner is recalled from home detention curfew he does not suffer a fresh deprivation of liberty so as to engage Article 5(4)of the Convention.
Since this part of Article 5 confers a right on any person who is detained to challenge the legality of the detention determined by a body sufficiently judicial in character, the lack of review would render the decision unlawful. As Lord Elias says in his opening remarks,
This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
Continue reading →
25 October 2012 by Adam Wagner
No means no
The Government has until 22 November to put forth legislative proposals in order to comply with the court’s rulings on prisoner votes.
I will not retrace the bizarre flip-flop which took place yesterday afternoon as the Attorney General appeared to say one thing about implementing the judgment (it’s complicated) and then the Prime Minister another (no way). Joshua Rozenberg has it right when he calls the situation “profoundly depressing”. For the full background, see my post on Scoppola No. 3, the last judgment on the issue.
I do have three thoughts on the current situation. First, it has become popular to say that there may be a way of solving the crisis which doesn’t require the UK to give any more prisoners the vote, which would be to tell the European Court of Human Rights that we already let remand prisoners and others who haven’t paid fines vote. The argument has been made variously by the BBC’s Nick Robinson, The Independent’s John Rentoul and even last night by a member of the Justice Select Committee, Nick de Bois MP – he told BBC Radio 4 (from 26:25) that “you could almost argue that there isn’t a blanket ban… for example someone on prison on remand or.. for not paying a fine doesn’t lose their right to vote” (I am interviewed immediately afterwards).
In short, unless I am missing something, this argument seems bound to fail.
Continue reading →
24 October 2012 by David Hart KC
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated
In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention.
My further thoughts on this case are found here.
The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.
Continue reading →
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
Recent comments