Category: LEGAL TOPICS
15 June 2012 by Guest Contributor
At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.
What exactly is canon law and how does it relate to marriage?
Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.
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14 June 2012 by Adam Wagner
Angus McCullough QC and Jeremy Johnson QC at the JCHR
The overwhelming majority of Special Advocates have responded to the Justice and Security Bill by stating that the case has still not been made by the Government for the introduction of closed material procedures in other types of civil litigation. The full response is available here (PDF).
Fifty Special Advocates have signed the response. This represents an overwhelming consensus of those with substantial experience of the current system of secret hearings.
They accept that the new restriction to national security cases is an improvement, but retain the view expressed in their initial response to the Green Paper consultation, that:
CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.
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13 June 2012 by Adam Wagner
The Home Office has released its Statement of Intent on Family Migration, which, amongst other things, makes the position a little clearer on its plans for Article 8 of the European Convention on Human Rights, as discussed in my earlier post (thank you to Obiter J for linking to the document in his post).
In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will 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.
The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang.
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12 June 2012 by Adam Wagner
The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns 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”
The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.
Let’s consider the argument. The Church puts a number of propositions. First,
It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.
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11 June 2012 by Rosalind English
Vinkov v Nachalnik Administrativno-nakazatelna deynost, Case C-27/11 – read judgment
Buried in the somewhat obscure details of this reference for a preliminary ruling is a hint of how the Court of Justice of the European Union (CJEU) is approaching arguments based on human rights principles as reflected in the Charter of Fundamental Rights of the European Union (‘the Charter’). Put briefly, there has to be a very clear involvement of EU law before a case can be made out under any of its human rights provisions or principles.
The Bulgarian Court of Appeal referred to the CJEU a question for a preliminary ruling arising out of a dispute over penalty points which triggered automatic disqualification from driving under Bulgarian law.
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10 June 2012 by Adam Wagner
Tomorrow, the Home Secretary will announce to Parliament plans to give judges guidance on how to interpret Article 8 ECHR (the right to private and family life) in foreign criminal deportation cases. There has been already significant speculation as to whether the long-heralded changes will make much or even any difference.
It is not yet clear whether the Home Secretary intends to restrict the use of Article 8 in foreign deportation cases completely, as suggested here, or rather attempt to tweak the way it is applied by judges. The latter is more likely.
We will report in full when the proposals are revealed. But in the meantime, a quick comment on the slightly odd coverage of the story in the press. For example, the BBC reports:
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7 June 2012 by Guest Contributor
In last week’s judgment in Assange v The Swedish Prosecution Authority [2012] UKSC 22, the Supreme Court decided that the words ‘judicial authority’ in s 2(2) of the Extradition Act 2003 include prosecutors as well as courts. This was because the European Arrest Warrant (EAW) Framework Decision, to which the Part 1 of 2003 Act gave effect, uses the expression in that broad sense, and the presumption is that Parliament meant the same thing (summary here).
The EAW Framework Decision has always guided the interpretation of the Part 1 of the 2003 Act. Until Assange, there were two different reasons for this: (i) a domestic rule of statutory interpretation; and (ii) the rule expounded by the Court of Justice of the EU in Case C-105/03 Criminal proceedings against Maria Pupino.
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6 June 2012 by Rachit Buch
Last week the UN Human Rights Commissioner published the draft report of the second Universal Periodic Review (UPR) of the UK’s human rights record (draft report here, webcast of the UPR session here). The UPR involves delegations from UN member states asking questions and make recommendations to the UK government on the protection of human rights, which the government will consider before providing its response. The report is extremely wide-ranging, perhaps to its detriment, though many valuable and interesting insights are provided.
The UPR process was established in 2006. It involves a review of all 192 UN member states once every four years. As readers of this blog will know, the protection of human rights has a troubled recent history in the UK, with newspaper campaigns against “the hated Human Rights Act” providing the background to government pronouncements on human rights that veer from the sensible to the ridiculous. In this context, the UPR provides a valuable attempt at a serious assessment of human rights in this country.
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5 June 2012 by David Hart KC
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011,
A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.
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5 June 2012 by Adam Wagner
Updated | In stark contrast to the pageantry surrounding the Royal Jubilee, here is a somewhat sombre update on the Justice and Security Bill, which was published on 28 May 2012 and is currently receiving its second reading in the House of Lords. The Bill aims to introduce Close Material Procedures, that is secret hearings, into civil trials.
Three key documents were published shortly after the Bill, presenting the Government’s case in response to the forceful criticism which the initial proposals generated. First is the Government’s response to the Joint Committee on Human Rights’ scathing report on the proposals. Secondly, the Government’s response to the 90 submissions received in response to the Justice and Security Green Paper consultation. Thirdly, a summary of European Convention on Human Rights issues relating to the Bill, also published by the Government.
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31 May 2012 by Rosalind English
Writing on the Richard Dawkins website, humanist campaigner Leo Igwe-Ieet declares that there is a gaping hole in the protections listed in international rights instruments.
I have heard it proclaimed at the UN that the rights of women are human rights. I have also heard it proclaimed that the rights of gay people are human rights. These proclamations changed the way human rights are perceived around the globe. Personally I have yet to hear it proclaimed at UN, or at our regional and national human rights bodies that the rights of atheists, agnostics and freethinkers are human rights. I do not want these rights to be implied or assumed as currently the case in most countries. I want them to be expressly declared as universal human rights.
The reason why such explicit protection is urgently needed, the writer claims, is because non-believers are particularly vulnerable in some parts of the world, notably Africa. In parts of Africa where fundamentalist belief holds sway, “religious non-believers are treated as if they are not human beings, as if they do not exist or do not have the right to exist.” The right to freedom of religion is of no avail to those who wish to eschew faith altogether. On the contrary,
freedom of religion is often understood as freedom to profess a religion-the religion sanctioned by the state, by one’s family or community- not freedom to change one’s religion or freedom not to profess any religion at all as contained in article 18 of the Universal Declaration of Human Rights.
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31 May 2012 by Rosalind English
Mohammed Othman v Secretary of State for the Home Department, 28 May 2012 – read judgment
This was a further application for bail to the Special Immigration Appeals Commission (SIAC) after the appellant had failed in his application to the Grand Chamber of the Strasbourg Court earlier this month, but had launched an appeal to be heard by SIAC, against the Home Secretary’s refusal to revoke his deportation order.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
A full hearing will take place in October. Until then, bail has been refused and Abu Qatada will remain in detention.
Given the evidence before him, Mitting J had to base his judgment on the assumption that the Secretary of State would not have maintained the deportation order unless convinced that she was in possession of material which could support her resistance to the appellant’s appeal and which could satisfy “the cogently expressed reservations of the Strasbourg Court about the fairness of the retrial”which the appellant would face in Jordan.
Two consequences flowed from these developments, according to the judge. One is that SIAC’s final decision in October is likely to put an end to this litigation. The second is that the risk of Qatada absconding has increased, if he assumes, in the light of the expressed determination of the Secretary of State, that he would not avoid deportation to Jordan by litigation in and from the United Kingdom.
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31 May 2012 by David Hart KC
Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment
Today, the Supreme Court held that Julian Assange should be extradited to Sweden for alleged rape. This is subject to further submissions on one point (concerning the Vienna Convention on Treaties), well covered by Joshua Rozenberg in his post on the lively proceedings when the judgment was handed down.
The whole of the appeal turned on one technical point, simple to state, but it took the Court 266 paragraphs to answer. Was the European Arrest Warrant which triggered the extradition request signed by a”judicial authority,” given that it was signed by a prosecutor? Most English lawyers, unburdened with the detail, would say – no, a prosecutor is not a judicial authority, indeed he or she is the opposite of that, a party. But, according to the Supreme Court, they are wrong, and so are the ministers who told Parliament that a judicial authority has to be some sort of judge or court.
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30 May 2012 by Rosalind English
R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
Background
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
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29 May 2012 by David Hart KC
I posted recently on the continuing legal see-saw in France arising from the prosecution of Total and other parties for their responsibility for the loss of the Erika on 12 December 1999. The Erika sank off the Brittany coast, spilling some 20,000 tonnes of heavy fuel oil, polluting some 400 km of the French coastline, and killing this poor guillemot, amongst many.
Last week, on 24 May, this criminal case reached the highest French court, the Cour de Cassation. Some thought that the court was going to rule immediately on whether Total and the others were criminally liable for the oil pollution. Previously, the Criminal Court of First Instance, and the Court of Appeal in Paris had said that Total and others were responsible. But now the prosecutor, Advocate-General Boccon-Gibod, was of the view that Total had no criminal liability. His written opinion appears not to have surfaced on the ‘net, but from the decision of the Court of Appeal (for the brave, and not for those with slow broadband, all 487 pages), you can see the points that Total was making, and which he seems to have accepted.
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