3 June 2015 by Rosalind English
mike 0010
Léger (Judgment) [2015] EUECJ C-528/13 (29 April 2015) – read judgment
Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process. Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.
This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.
Legal background
This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability.
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2 June 2015 by Guest Contributor
The October 2014 Conservative Party proposals promised to:
End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement.
In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point
at which our Bill comes into effect.” (see proposals here )
The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and the Queen’s Speech on 27th May promised that there would be a consultation exercise (see summary here)
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1 June 2015 by David Scott
With our new team of Scots law researchers in place, the time has come for the briefest of introductions to the Scottish legal system. David Scott is our tour guide.
The Court system
The Scottish court system is divided into five tiers:
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1 June 2015 by Thomas Raine
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.
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1 June 2015 by Jim Duffy
The General Court
An interesting event – particularly in the current political context – takes place this Thursday at LSE. Hart Publishing will be marking the launch of a new book, “>Europe’s Justice Deficit?‘, with a debate between Justice Guiliano Amato of the Constitutional Court of Italy and Professor Christian Joerges of the Hertie School of Government. Justice Amato twice served as Prime Minister of Italy.
Together with the book’s co-editors (Dimitry Kochenov, Gráinne de Búrca and Andrew Williams) and authors, Amato and Joerges will consider whether the EU is simply a political and legal order, whether it undermines the pursuit of justice by Member States, and whether scholars and policy-makers have paid sufficient attention to questions of justice in the EU context.
Date and place: Thursday June 4, 2015, London School of Economics and Political Science; 3-6pm, room 32L.G.03 (on the South side of the Lincoln’s Inn Fields). The event will be followed by a reception.
If you would like to attend, email Sarah Lee at s.lee33@lse.ac.uk
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1 June 2015 by Hannah Lynes
Actor Benedict Cumberbatch is vocal in his support for the HRA
This week’s Round-up is brought to you by Hannah Lynes
In the news
Prime Minister David Cameron has postponed the introduction of a British Bill of Rights, the Queen’s Speech containing only proposals for consultation. Director of Liberty, Shami Chakrabarti has welcomed the development:
“It is heartening that a Conservative Government committed to scrapping the Human Rights Act has at least paused for thought in its first Queen’s speech. There is a long struggle ahead but time is the friend of freedom.”
Debate surrounding the proposed Bill of Rights continues in full force. Proponents of the HRA draw attention to perceived misconceptions advanced by the opposing side. Lord Leveson points out that UK courts are not ‘bound’ by the decisions of Strasbourg (“the legislation only requires us to take them into account”), whilst Colin Yeo for the Free Movement blog questions the accuracy of claims that the HRA prevents us from deporting serious foreign criminals. Dr Ed Bates argues in the Constitutional Law blog that the domestic judiciary is more supportive of the ECHR than certain politicians would have us believe. Useful coverage of the views expressed by senior judges is provided here.
Other news
Housing: Leading housing charities last month issued a report claiming that the present ‘crisis’ in housing has put the UK in breach of its UN obligations to provide adequate homes. Housing campaigners fear government proposals set to reduce housing benefit for 18-21 year olds will serve to exacerbate the problem. The measures could “spell disaster for thousands of young people who…could be facing homelessness and the terrifying prospect of roughing it on the streets”, warns Chief Executive of Crisis, Jon Sparkes.
Surveillance: Prominent legal academics have signed a letter calling on the Government to ensure that any changes in surveillance law “are fully and transparently vetted by parliament, and open to consultation from the public and all relevant stakeholders”. The Guardian reports here.
Police: Hampshire Constabulary has admitted a failure to properly investigate the complaint of a victim of rape, who had been accused of lying by the force. An out-of-court settlement was reached with the young woman following commencement of proceedings under the Human Rights Act.
Discrimination: A woman turned down for a job because she observed Shabbat, the Jewish day of rest, was successful in her claim for indirect discrimination. The Telegraph reports on the decision.
Gender: An interview with barrister Roy Brown in Halsbury’s Law Exchange examines the significance of recent High Court decisions in JK and Carpenter for transgender rights in the UK.
In the courts
This case concerned the question of legal representation in complex family proceedings. The Court of Appeal held that whilst it may be inappropriate for an unrepresented litigant to conduct cross-examination of his alleged victim, a judge is not entitled to order the Courts Service (HMCTS) to pay for a legally trained advocate to do so on the litigant’s behalf. A court is not permitted to circumvent the detailed provisions for legal aid eligibility set out in LASPO. Further, the result does not amount to a breach of Article 6 ECHR (the right to a fair trial), since the court has available to it other alternatives. These include the possibility of the judge himself conducting the questioning.
1COR’s David Hart QC analyses the decision here.
UK HRB posts
Events
1COR/JUSTICE will be holding a major seminar on 4 June: Public Law in an Age of Austerity. To register please email Lisa Pavlovsky.
If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.
Hannah Lynes
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31 May 2015 by David Hart KC
Re K and H [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment
Philippa Whipple QC and Matthew Donmall of 1 COR appeared for the Lord Chancellor in this case. They have played no part in the writing of this post.
Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.
That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.
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31 May 2015 by Martin Downs
Last week the people of the Republic of Ireland voted in a referendum to amend its constitution to allow marriage by two persons “without distinction as to their sex” by 62 – 38%.
The exuberance of the moment was captured by a tweet from the Irish Minister of State for Equality, Aodhán Ó Ríordáin TD stating, “Ireland hasn’t just said “Yes” Ireland has said “F❤CK YEAAHHHH”
The media was awash with celebratory images. Prominent in these were two Irish Senators who played their part by bringing test cases. Decriminalisation had only come about in Ireland in 1993 after Senator David Norris had challenged the previous discriminatory law in the European Court of Human Rights and won (in 1998) with the assistance of his Counsel, then Senator and subsequently President Mary Robinson.
The recognition of same sex partnerships in Ireland really came to prominence when Senator Katherine Zappone sought recognition of her Canadian marriage (with Ann Louise Gilligan) within the tax system. The High Court ruled that the constitution defined marriage as being between a man and a woman and the stage was set for battle to commence. In the meantime the government had started to take evasive action and defined marriage in the Civil Registration Act 2004 as being between a man and a woman (it was previously undefined). This was the year that the UK Parliament passed the Civil Partnership Act – which covered Northern Ireland. In 1998 the Irish Government in the Belfast Agreement committed to bringing,
measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.
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28 May 2015 by Kate Beattie
Join 1COR and JUSTICE on Thursday 4 June 5.00-7.30pm in central London to discuss public law in an age of austerity.
Topics include:
- introduction to Public Law: Judicial Review Principles, Procedure and Funding
- Human Rights in an Age of Austerity – Moving towards a British Bill of Rights?
- Breakout sessions
- Panel discussion on the Future of Public Law in an Age of Austerity – Speakers include The Rt Hon Sir Stanley Burnton.
This seminar is designed for solicitors (whether in private practice or in-house) and those working in the civil justice and human rights sector.
Follow this link to the full programme: 4 June programme.
Places are free but you must register by emailing lisa.pavlovsky@1cor.com. When replying please state your preference for the break-out sessions.
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27 May 2015 by Laura Profumo
Photo credit: The Guardian
Laura Profumo brings us the latest human rights goings on.
In the News:
This afternoon, the new Conservative Government’s legislative plans were announced in the Queen’s Speech. Michael Gove, the recently appointed Justice Secretary, will have to defend his party’s intention to scrap the Human Rights Act, blunting the influence of Strasbourg jurisprudence. As Daniel Hannan observes, Gove faces a “different order of magnitude” in his new role, finding himself up against an “articulate and wealthy lobby” within the legal profession. An “elegant compromise” might be found, Hannan suggests, in amending our extant Bill of Rights to include ECHR freedoms, restoring “our sovereignty and our democracy”.
It is certainly clear that Gove will have to carefully pilot the reforms through Parliament. Lord Falconer cautions that the House of Lords, where the Conservatives don’t have a majority, may prove obstructive:
“If the Conservative measures strike at fundamental constitutional rights, the Lords will throw this back to the Commons”.
The backbencher minority of ‘Runnymede Tories’, forcefully headed by David Davis, will also seek to stall the Bill’s course. Yet, Matthew d’Ancona concedes, “if anyone has the intellectual firepower to square all the circles it is Gove”.
In brighter news, the Republic of Ireland has become the first country to legalise same-sex marriage through popular vote. Some 62% of the electorate voted in favour of the reform, with all but one of the Republic’s 43 constituencies voting Yes. The result comes just two decades after the Irish government decriminalised homosexuality, marking a milestone in Ireland’s divisive religious history. The Archbishop of Dublin, Diarmuid Martin, recognised the vote as a “social revolution”, which requires the Church to “have a reality check, not move into the denial of realities”.
In a prelude to the historical referendum, the ‘Gay Cake’ Case, which has gripped Northern Ireland for the last year, come to a close last week. In a clear decision, it was found that the Christian bakery’s refusal to make a campaign cake the LGBT support group, QueerSpace, amounted to direct discrimination on grounds of sexual orientation. The outcome has not been welcomed by all. TUV leader Jim Allister lamented it a “dark day for justice and religious freedom”, whilst Melanie McDonagh, writing in the Spectator, found the decision inversely “intolerant and discriminatory”, forcing a Presbyterian business to promulgate a message “at odds with their belief”. Yet talk of religious persecution is besides the point, argues academic Colin Murray. The case concerned the “ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium”. It was not, as McDonagh suggests, a case of cake artisans’ ‘right to ice’, but the right of the public to lawfully contract with a business, irrespective of “how that public is constituted”.
Following the decisive vote across the border yesterday, many hope that Northern Ireland, the only part of the United Kingdom where same-sex marriage is still prohibited, will follow suit. Deputy First Minister Martin McGuinness has advocated a referendum: “This is a matter of whether or not we want to live in a modern progressive society that respects minorities”. Now that Northern Ireland has their cake – it remains to be seen whether the idiom will ring true.
In Other News:
- Haile v London Borough of Waltham Forest: The Supreme Court ruled that the appellant had not made herself intentionally homeless when, after learning that she was pregnant, she left her London hostel. As she would have been evicted from the hostel anyway, on giving birth to her child, the Court ruled in her favour. Her lawyer, Nathaniel Matthews, welcomed the decision as one in which “glorious common sense prevailed. Women who become homeless because they have become pregnant must be protected”.
- Vladimir Putin has signed a bill which allows foreign NGOs to be banned from operating in Russia. The law will allow authorities to prosecute NGOs which are designated as ‘undesirable’ on national security grounds. Individuals working for such organisations could face fines, or up to six years’ imprisonment. Amnesty International has condemned the measure as part of the “ongoing draconian crackdown…squeezing the life out of civil society”.
In the Courts:
- Identoba and Others v GeorgiaThe Georgian police failed to protect participants in a march against homophobia from violent attacks of counter-demonstrators. ECtHR held the police had violated the protestors’ Article 3 and 11 rights, in failing to take sufficient measures to prevent the attacks.
- SS v the United Kingdom; F.A and Others v the United Kingdom A case concerning convicted prisoners’ entitlement to social security benefits was held to be inadmissible by ECtHR. The applicants were prisoners in psychiatric hospitals who complained that, under new 2006 regulations, denying them benefits paid to the other patients amounted to unjustified discrimination. The Court emphasised Contracting States’ margin of appreciation in social policy, finding that the differential treatment was not unreasonable, given that the applicants, whilst patients, were also convicted prisoners.
- Gogitidze and Others v Georgia The ECtHR ruled that the forfeiture of a wrongfully acquired property was not in breach of the tenant’s right to peaceful enjoyment of their possessions, under Article 1 of Protocol No.1. As the property confiscated belonged to the former Deputy Minister of the Interior, the Court inquired whether a proportionate balance had been struck between the method of forfeiture and the public interest in combating political corruption. The domestic courts were held to have achieved such a balance.
Events:
- ‘Do we need a new Magna Carta?’ The Miriam Rothschild & John Foster Human Rights Trust, and University College London, are hosting a lecture given by Lord Lester QC, on alternatives to the embattled Human Rights Act. The event will take place at 6.15pm, 15th June, at the Institute of Child Health. Please RSVP to rsvplectureinvitation@gmail.com.If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor, Jim Duffy, at jim.duffy@1cor.com
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22 May 2015 by David Hart KC
Gulati v. MGN Ltd [2015] EWHC 1482 (Ch), Mann J – judgment here
For some years in the early and mid 2000s, a routine form of news-gathering in the Mirror Group was phone hacking – listening to voicemails left for celebrities by their friends, and then dishing up revelations in their papers. And this judgment amounts to a comprehensive pay-back time for the years of distress and upset sustained by those celebrities, as the ins and outs of their private lives were played out for the Mirror Group’s profit. The damages awarded well exceeded those previously payable, as justified in the tour de force of a judgment by Mann J.
Warning – the judgment, compelling though it is, runs to 712 paragraphs. It concerns the assessment of damages in eight cases. The Mirror Group belatedly admitted liability and apologised, not before denying any wrongdoing to the Leveson inquiry. Other claims rest in the wings pending this trial. But with awards between £72,500 and £260,250, the bar has been set high by Mann J.
The claimants (with one exception) were the classic subjects of tabloid columns, namely EastEnders and Corrie stars (or those unfortunate to be married to them), the sometime air hostess girlfriend of Rio Ferdinand, Jude Law’s former wife, Sadie Frost, and, inevitably, Gazza. Seven sued because the hacking led to repeated articles about them. The eighth, Alan Yentob, Creative Director of the BBC, was hacked because of the information derived from the famous people who had left voicemails for him.
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22 May 2015 by Jim Duffy
Guardian: James Rhodes and friends including Benedict Cumberbatch outside Court
James Rhodes v OPO (by his Litigation Friend BHM) and another, [2015] UKSC 32
The Supreme Court has handed down its judgment in an appeal by the celebrated concert pianist, James Rhodes. You can read the judgment here and watch Lord Toulson’s summary here.
The case considered whether Mr Rhodes could be prevented from publishing his memoir on the basis that to do so would constitute the tort of intentionally causing harm. Those acting on behalf of Mr Rhodes’ son were particularly concerned about the effect upon him of learning of details of his father’s sexual abuse as a child.
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22 May 2015 by Guest Contributor
Sajid Javid’s reported objections to the Government’s pre-election proposals on countering extremist ideas uncover just how controversial the new laws will be. He had objected, it seems, to a mooted expansion of Ofcom’s powers to take pre-emptive action to prevent the broadcast of programmes with ‘extremist content’ before they are transmitted.
That specific proposal may no longer be part of the proposed laws, but Ofcom is likely to be given powers to move against broadcasters after transmission. And there will be plenty else to discuss when the legislation is likely announced in the Queen’s Speech next week.
The main points have already been revealed when last week the Prime Minister and the Home Secretary announced that new laws will be introduced ‘to make it much harder for people to promote dangerous extremist views in our communities.’ As always in counter-terrorism laws, the relationship between freedom and security will be brought into sharp focus when the proposals are debated. In this piece we set down some of the questions which we think warrant attention.
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22 May 2015 by Guest Contributor
Constitutional Futures 2015 – 2025 – a vignette, and comment
January 1, 2025
As the first day of 2025 dawns the people of the Kingdom of England wake looking forward to the arrival of their new passports, issued by the United States of… America. Governor Farage’s message is unusually sober, encouraging, almost apologetic:
While we had hoped to make our future with the Commonwealth, despite our best efforts, and the tireless advocacy of the Royal Family, we must acknowledge that our former friends are content with their lives and more local partners. We thank Her Majesty, and her family, for their service. We wish them well with their continued public service in Scotland, Canada and elsewhere.
While the bargain our NAFTA partners have struck is a bracing one, it is one which I believe we can live with, and indeed thrive under. As the fifty-first state, the first to join since Hawaii in 1959, we rejoin friends older than the New Zealanders, Australians, Canadians; we go back to our shared Mayflower roots.
President Clinton assures me that she expects Baroness Hale to be confirmed to the Supreme Court. I’m sure she will do great work weaving British principles into our new shared constitution.
With representatives in the House, and Senators Cameron and Umuna in the Senate, we can look forward to a prosperous future as a new and vital part of a nation we can claim have been with, in some ways, since it began.
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22 May 2015 by Adam Wagner
These are difficult times for bringing public interest legal cases. The withdrawal of legal aid from many areas has meant that it has become a lot more difficult to fund cases. And the lawyers who are the experts in this kind of litigation are finding it harder and harder to keep practising in the area.
So bravo to a new initiative, CrowdJustice, a crowdfunding platform for public interest litigation. For those who don’t know about crowdfunding, it has been a huge success for other kinds of projects through sites like Kickstarter and Indiegogo. CrowdJustice is already fundraising for its first case, Torres v BP and Others, and there is a nice video on the site which has been cross posted by The Guardian.
Crowdfunding isn’t going to replace Legal Aid, nor is it going to become the main or perhaps even a major source of public interest litigation funding. But in cases that interest the public (is that the same as public interest?), it could become a really important resource. In the age of social media, a cleverly pitched campaign can raise a decent amount of money quickly. And wouldn’t it be interesting if someone could figure out a way of building a kind of crowd funded conditional fee agreement, whereby people get back their money or even a share of the damages if the case is successful?
Good for CrowdJustice – go to the site, share, and if you want to, contribute!
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