Scotland, Sewel, and the Human Rights Act

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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The Long Shadow of the Troubles

Photo: The Guardian

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.

 

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Conscience and cake

4495195_origGareth Lee v. Ashers Baking Co Ltd, Colin McArthur and Karen McArthur [2015] NICty 2 – read judgment here.

In a claim popularly dubbed the ‘gay cake’ case, which has attracted international attention, District Judge Brownlie of the Northern Ireland County Court held yesterday that it was unlawful direct discrimination on grounds of sexual orientation for a bakery owned by two Christians to refuse to bake a cake which had printed on it a picture of ‘Bert and Ernie’ and the caption ‘Support Gay Marriage’ .

The parties approached the claim from very different standpoints. The Plaintiff, Mr Lee, argued that Mr and Mrs McArthur refused to bake the cake because he was gay. The Defendants argued that they did not know what Mr Lee’s sexual orientation was and it would have made no difference if they had. They would have happily served him a cake of any kind. Rather, they objected to the message on the cake because they felt they would be promoting or supporting a cause which they disagreed with, going against their consciences. They would have refused to bake the same cake for a customer of any sexual orientation.

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1940 Soviet massacre outside reach of European Convention, rules Strasbourg

Trzy_krzyze-1Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09)read judgment

The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.

The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.

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What do *you* think is the way forward for human rights in Northern Ireland?

Good Friday Agreement

Good Friday Agreement

Advice on a Bill of Rights for Northern Ireland, submitted to the Secretary of State by the Northern Ireland Human Rights Commission in 2008, was roundly rejected by the UK government in 2009 and there seems to be little appetite within the Northern Ireland Office for revisiting the issue in the foreseeable future.

In London, the coalition government’s Commission on a UK Bill of Rights, set up in 2011, reported in 2012 but could not suggest an agreed way forward on a UK basis. In Scotland, on the other hand, bearing in mind the forthcoming referendum on independence in 2014, there is renewed interest in whether legislation should be passed by the Scottish Parliament to guarantee a range of social and economic rights. The Republic of Ireland, for its part, is currently re-examining its Constitution and has recently voted in a referendum to enhance the protection of children’s rights.

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