Category: LEGAL TOPICS
16 March 2011 by Adam Wagner
Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2011] UKSC 11 – Read judgment / press summary
The Supreme Court has ruled that pensioners from other European Union states should not have the right to claim pension credits in the UK. Although the current ban on claiming these benefits is indirectly discriminatory, the discrimination is a justified response to the legitimate aim of protecting the public purse.
The 4-1 majority ruling (Lord Walker dissented) is likely to calm fears of “benefit tourism” and will probably be wrongly reported as a victory of sensible limits on public finances over human rights. For the record, the appeal was based squarely on EU freedom of movement law and had very little, if anything, to do with human rights.
Continue reading →
16 March 2011 by Rosalind English
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
Continue reading →
16 March 2011 by Adam Wagner
As well as blaming bloggers for media frenzies in yesterday’s Law in Action interview, the Attorney General also made some interesting comments on the UK’s bold new tactic on prisoner votes (see my post on Monday), which is effectively to try to appeal an unappealable ruling.
He said (from 19:20) that the UK “takes its responsibility seriously” and that it would be seeking to reform the court when it takes on the chairmanship later this year. “In any political process” he reminded Rozenberg, “the movement of the tectonic plates is always going to be a bit rough” (please note that the programme was recorded before the Japanese earthquakes). He would not say, however, whether the government would do anything to comply with the ruling in Hirst No. 2.
Continue reading →
16 March 2011 by Adam Wagner
The Attorney General has warned publishers that the law may be changed to prevent them revealing the names of criminal suspects before they are charged. He also blamed the “massive” and “frenzied”coverage of pre-charge suspects in part on pressure on newspapers from the blogosphere.
Dominic Grieve told Joshua Rozenberg on yesterday’s Law in Action (listen here):
We seem to be living a world where because of competing interests on newspapers, perhaps in part because of the internet, because of the fact they are competing with the blogosphere where people are publishing a great deal of material, national newspapers are keen to give as much background detail to their readers as possible at early stages of criminal investigations. (09:25)
Continue reading →
14 March 2011 by Alasdair Henderson
R (BB) v. Special Immigration Appeals Commission and Home Secretary – Read judgment.
The Divisional Court has ruled that bail proceedings before the Special Immigration Appeals Commission (“SIAC”) are subject to the same procedural standard under Article 5(4) of the European Convention (the right to liberty) whether they take place before or after the substantive judgment. That standard is that the applicant must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, as set out in A v United Kingdom and R (Cart) v. SIAC.
This decision forms the latest in a string of cases considering the extent to which the Government can rely on secret or ‘closed’ evidence in defending appeals by individuals challenging decisions made against them. A judgment by the Supreme Court is imminently expected in the conjoined cases of Al-Rawi v. Security Service and Tariq v. Home Office (see helpful summary here and our analysis of the broader issue of open justice here), which consider this issue in relation to civil damages claims and employment law claims. However, BB is the High Court’s most recent pronouncement on the position in the fraught area of immigration and national security.
Continue reading →
10 March 2011 by Adam Wagner
Lord Anthony Lester, Helena Kennedy QC and Martin Howe QC are to sit on the upcoming commission on human rights reform, the press are reporting this morning.
Lester and Kennedy are both well-known human rights experts. Howe has long-standing proponent of replacing of the Human Rights Act with a bill of rights.
According to The Sun, which says the “probe on how to tackle power-crazy Euro judges is being held up by bickering Tories and Lib Dems“, the 7-strong commission will also include another Liberal Democrat nominee (in addition to Lester), two more members appointed by the Tories and a senior Ministry of Justice civil servant. It will have to report by December 2012.
Continue reading →
9 March 2011 by Guest Contributor
At the end of the Wizard of Oz Dorothy manages to find her way back from the land of Oz to her farmstead in Kansas by closing her eyes, clicking the heels of her ruby-red slippers together, and repeatedly murmuring the incantation “There’s no place like home; there’s no place like home …”.
In his Bringing Rights back home: making human rights compatible with parliamentary democracy in the UK (Policy Exchange, 2011) the political scientist Dr. Michael Pinto-Duschinsky attempts a similar feat, seeking to bring human rights back from the Land of Stras(bourg).
Continue reading →
9 March 2011 by Adam Wagner
Updated | CPS -v- Mohammad Razaul Haque and Emdadur Choudhury – Read judgment
A man has been found guilty of public order offences for burning poppies and chanting “British soldiers burn in hell” on Remembrance Day. He was fined £50.
The ruling, and in particular the fine, has led to public anger. The Sun called the fine “pathetic” and asked whether Britain is now “deep in a quicksand of political correctness and hand-wringing over human rights“. The Prime Minister has said that we should be “making a stronger statement that that sort of behaviour is completely out of order and has no place in a tolerant society”
The Sun is wrong that Emdadur Choudhury’s low fine had anything to do with human rights; Chief Magistrate Riddle made clear that “invoking the criminal law to interfere with freedom of expression is proportionate“. But two important questions do arise. First, whether the conviction represents a disproportionate breach of Emdadur Choudhury’s right to freedom of speech. Secondly, if the £50 fine was adequate.
Continue reading →
7 March 2011 by Adam Wagner
Update 9/5/11 – for more on super injunctions, see Gagging on privacy, the Human Rights Roundup and Unelected, underqualified and frankly bonkers.
Last week the High Court convicted two newspapers, the Daily Mail and the Sun, of contempt of court for the publication on their websites of a photograph of a man toting a gun during the ongoing criminal trial of that man. They are now likely to face large fines.
It was the first such case of contempt relating to an online publication. By way of background, Alex Bailin QC has posted an excellent comment piece on the Inforrm blog. I have also already discussed the judgment, and the ominous warning by the court that “instant news requires instant and effective protection for the integrity of a criminal trial“.
My post generated comments from concerned bloggers and tweeters asking what this meant for contempt and online publishing going forward. This is a hard question to answer as it mostly depends on which cases the Attorney General choses to prosecute. But, although the following is not legal advice, reviewing the case-law on contempt provides some indication of may be to come, and common-sense ways in which publishers, including tweeters and bloggers, can avoid being prosecuted.
Continue reading →
7 March 2011 by Guest Contributor
There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.
The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.
Continue reading →
3 March 2011 by Adam Wagner
Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 418 (Admin) – Read judgment
For the first time a court in England has convicted two newspapers, the Daily Mail and the Sun, of contempt of court in breach of the Contempt of Court Act 1981, for the publication of a photograph relating to an ongoing criminal trial on their websites.
The judgment contains an important warning for bloggers, tweeters and journalists who use instant news to report on criminal trials: “instant news requires instant and effective protection for the integrity of a criminal trial“.
Continue reading →
3 March 2011 by Adam Wagner
Snyder v. Phelps (09-751), United States Supreme Court – Read judgment
A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
Continue reading →
3 March 2011 by Isabel McArdle
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener) [2011] EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
Continue reading →
2 March 2011 by Rosalind English
Johns v Derby City Council and Equality and Human Rights Commission (intervening) [2011] EWHC 375 (Admin)- Read judgment
Religious views opposing homosexuality are a legitimate fostering concern and the local authority’s approach to this question did not constitute religious discrimination.
The claimant husband and wife applied to the defendant local authority to be approved as short-term, respite, foster carers. They were members of the Pentecostalist Church and believed that sexual relations other than those within marriage between one man and one woman were morally wrong. The local authority considered that the claimants’ views on same sex relationships did not equate with the National Minimum Standards for Fostering Services which required carers to value individuals equally and to promote diversity. The local authority’s Fostering Panel therefore deferred a decision.
Continue reading →
1 March 2011 by Adam Wagner
Updated | Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres, Case C‑236/09 – Read judgment / press release
The Court of Justice of the European Union (CJEU) has ruled that from December 2012, insurers will be prevented from charging different premiums on the basis of an insured person’s gender. A partner at a leading commercial law firm called September’s preemptive preliminary opinion “completely bonkers”. Can the same be said about the latest decision?
Coverage of the decision has already been largely negative. As well as involving Europe’s increasingly unpopular and possibly unelected judges, the ruling affects an interest group – insurance companies – with deep pockets and who are capable of sophisticated lobbying. And nobody wants to see their insurance premiums go up, if that is indeed to be the outcome of this ruling, something which is by no means clear. So expect to see plenty of critical articles. The Telegraph website is already sporting an unchallenged article/press release from Esure, including a video interview which begins with an advert for ESure’s “Sheila’s Wheels”.
Continue reading →
Recent comments