Category: LEGAL TOPICS
11 August 2010 by Adam Wagner
Redaction in Al Rawi
Gradwick v IC and the Cabinet Office (EA/2010/0030) – Read decision
The Panopticon Blog has highlighted an interesting recent case in the General Regulatory Tribunal which may prove to be useful in the many different situations where documents are disclosed in redacted form.
The General Regulatory Tribunal (‘the Tribunal’) regulates information rights, amongst other things. Simply, the Tribunal held that if parts of documents disclosed under the Freedom of Information Act 2000 are to be redacted (blacked out), it is not good enough to transcribe a new document with the offending parts removed. This is because, as the Tribunal said:
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9 August 2010 by Adam Wagner
The Strasbourg court
A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.
The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.
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9 August 2010 by Adam Wagner
A leading children’s charity has said that vulnerable children are trapped in an unnecessary limbo of court delays, with courts taking up to 65 weeks to decide whether it is safe for a child to remain with its parents.
Barnardo’s has based its research (see press release) on ‘court data’ although the data itself is not published on their website. On the face of it, the figures are worrying:
Vulnerable children are waiting on average more than a year (57 weeks) in unstable family homes or emergency foster placements before a county court decides if they will be taken into care. In the family proceedings (magistrates) court the average time is 45 weeks – more than 10 months.
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6 August 2010 by Adam Wagner
In happier days
A database which was to hold the details of every child in England will be switched off at noon today, but the uneasy relationship between social services, the government and the courts in child protection matters still remains.
The closure of the £224 million scheme marks a victory for human rights and privacy campaigners as well as the fulfilment of a longstanding promise by the coalition partners.
The ContactPoint Database was set up in the wake of Lord Laming’s 2003 Victoria Climbié Public Inquiry, which recommended, amongst other major changes in child protection policy, that the government should investigate the setting up of “a national children’s database on all children under the age of 16.” Victoria Climbié died in 2000 at age 8 after being abused by her guardians. In the trial of her guardians which followed her death, the judge described the response of local authorities as “blinding incompetence”.
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5 August 2010 by Adam Wagner
Lord Hope
Lord Hope, the Deputy President of the UK Supreme Court, has said that repealing the Human Rights Act would have little practical effect effect on the enforcement of rights in the courts.
Joshua Rozenberg reports Lord Hope’s comments in the Law Society Gazette:
… what Hope did confirm – and I have never before heard a serving judge say this so clearly – was that repealing the Human Rights Act 1998 would, by itself, make very little difference to way such rights are enforced in our courts. As he explained, the most significant change to the UK’s relationship with the Human Rights convention came in 1966, when Britain first allowed individuals to bring cases against the government; until then, claims against Britain could be brought only by other states. As a result, courts in the UK felt obliged to take the convention into account.
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5 August 2010 by Adam Wagner
A Federal court in California has struck down a ban on gay marriage in the state, marking the first step on a path to a United States Supreme Court decision on the issue. A similar decision is unlikely here, however, given a recent European Court of Human Rights ruling on gay marriage. Ultimately, only Parliament is likely to bring about a change to the law in the UK.
The decision in Perry v Schwarzenegger has been widely reported and can be downloaded here. U.S. District Judge Vaughn R. Walker found that California’s ‘Proposition 8’, approved by voters in 2008, was unconstitutional. SCOTUSBlog explain the reasoning:
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4 August 2010 by Adam Wagner
The Human Genetics Commission have today published new guidance for direct-to-consumer genetic tests, including a recommendation that children should not be genetically tested by their parents unless the test is clinically indicated. The guidelines highlight that the ethical issues surrounding home-testing are still fuzzy and provide an interesting challenge from a perspective of human rights.
Home DNA testing kits are a fast-growing trend. They have already been on sale direct to consumers for three years by companies such as 23andMe and deCODEme, which advertise home-testing as a means of “taking charge of your health” and “filling in your family tree”. DNA paternity testing has been available for years, but it is the health aspects of home testing which have huge and potentially troubling implications in respect of basic rights.
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4 August 2010 by Rosalind English
W(Algeria) and 7 Others v Secretary of State for the Home Department [2010] EWCA Civ 898 (Jacob LJ, Sullivan LJ and Sir David Keene) 29 July 2010 – read judgment
Article 6 of the Convention did not require an “irreducible minimum of information” that had to be provided to appellants in proceedings before the Special Immigration Appeals Commission about the risk they posed to national security.
In their appeal against decisions of the respondent secretary of state to deport them on grounds of national security (upheld by the Special Immigration Appeals Commission (SIAC)) the appellants all claimed that they would be at risk of ill-treatment if they were deported. They had obtained relevant information which had been provided on the understanding that it could only be made available if there were clear guarantees that it would not become known to their national government.
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3 August 2010 by Adam Wagner
Happy birthday!
The UK’s new Supreme Court has reached the end of its first term, leading to some interesting discussions about its future from both practical and philosophical perspectives. From a human rights angle, a well-tooled and robust Supreme Court which acts to keep the government in check is good for everyone.
On a practical level, the UK Supreme Court Blog has posted on the stark warning from the UKSC’s chief executive, Jenny Rowe, to the effect that the Government’s proposed budget cuts could cripple the new court after only a year in operation. The UKSC Blog reports that Jenny Rowe, the court’s Chief Executive, has said she is not sure where the axe will fall but that “since casework (i.e. the hearing and determination of appeals) was the Court’s “priority“, it would be the Court’s public education and outreach programmes that would be most vulnerable.”
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3 August 2010 by Adam Wagner
Worth lying for?
(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling
The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.
The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.
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2 August 2010 by Adam Wagner
Updated (4 Aug 2010)
Army generals are notorious for fighting the last war instead of the current one. Human rights campaigners may be in danger of the same mistake if they get their strategy wrong for the new coalition government.
The great civil liberties fight of the last decade centered on New Labour’s anti-terrorism measures. Keystone issues such as stop and search, 42-day detention without charge and control orders caught the public imagination and have been the subject of bitterly fought and largely successful campaigns by rights groups.
The other significant fights have been over the so-called surveillance state; for example CCTV, the DNA database and ASBOs, all of which are now being considered for reform by the new government.
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2 August 2010 by Adam Wagner
The government has launched a sparkly looking but as yet scantily featured new legislation website, legislation.gov.uk, to replace the two websites which previously did the same job, OPSI and the Statute Law Database.
One notable absence from the National Archives-run site is any guarantee that the statutes will be up to date after 2002. This was also a limitation of its predecessors, which is why lawyers generally avoided them for fear of unknowingly using an out-of-date statute. “About half” of the legislation is now up to date, according to the frequently asked questions section. This is surprising given the amount of money which is spent on Government IT; the new website asking what laws people want scrapped will apparently alone cost £20,000.
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2 August 2010 by Adam Wagner
For those of you looking for more information on last week’s Supreme Court judgment on UKIP party funding (see our previous post), we have been sent an interesting analysis of the judgment from Lucy Colter at Four New Square Chambers.
Patrick Lawrence Q.C. and Can Yeginsu, also of Four New Square, appeared for UKIP. The judgment was only of tangential importance in respect of human rights, but Coulter addresses this towards the end of her article. The main point was that a court in future would have leeway as to how much it could order a party to forfeit. As such, the court was satisfied that the party funding legislation is sufficiently flexible so as not to contravene human rights law:
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30 July 2010 by Adam Wagner
Morley & Ors v. R [2010] EWCA Crim 1910 – Read judgment
Four former Members of Parliament have failed in their appeal of a Crown Court ruling preventing them from claiming parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal.
The appeal was of Mr Justice Saunders’ ruling in the Southwark Crown Court that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses. He had said that he could “see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either.”
The Lord Chief Justice gave the judgment of the court, and made clear that Parliamentary privilege was simply not designed to protect these four men from the allegations currently against them:
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29 July 2010 by Adam Wagner
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
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