26 March 2014 by David Hart KC
Kennedy v. Charity Commission et al, Supreme Court, 26 March 2014 read judgment
In judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000 concerning three inquiries between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.
The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.
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26 March 2014 by Rosalind English
CD v ST (judgment of the Court) [2014] EUECJ C-167/12 (18 March 2014) – read judgment
Z v A Government Department and the Board of Management of a Community School C‑363/12 – read judgment
The European Court (CJEU) has now considered two requests for preliminary ruling made in proceedings between intended mothers (also referred to as a commissioning mother) who have had babies through a surrogacy arrangement, and their employers concerning the refusal to grant them paid leave following the birth of the babies. It has replied that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.
I reported on the AGs’ opinions in both cases here, noting that AG Kokott and AG Wahl took a completely different approach in their interpretation of the applicability of Directive 92/85 in surrogacy cases; the Court has clearly decided that granting maternity leave in these circumstances would be a step too far.
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23 March 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular springtime blossom of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, a challenge to the legal aid reforms by the Howard League for Penal Reform is rejected, while campaigners seeking an inquiry into the action of British soldiers in Malaya in 1948 face similar disappointment. Meanwhile, some of the most senior judges in the UK give their views on the role of the judiciary today.
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20 March 2014 by Rosalind English
Keyu and Others v Secretary of State for Foreign and Commonwealth Office and another [2014] EWCA Civ 312, 19 March 2014 – read judgment
After an interesting analysis of the time limits for claims under Convention in response to a claim made in relation to actions by British soldiers in Malaya in 1948, the Court of Appeal dismissed all their human rights, customary international law and Wednesbury arguments. There was no obligation in domestic law for the state to hold an inquiry into the deaths of civilians killed by British soldiers in colonial Malaya in 1948, even though the Strasbourg Court might well hold that such a duty ensued.
Background
After the defeat of Japan in WWII and their withdrawal from Malaysia, there ensued a bitter conflict between Malaysian civilians Chinese-backed communist insurgents. In 1948 Commonwealth forces got involved and there ensued a guerrilla war fought between Commonwealth armed forces and the Malayan National Liberation Army (MNLA), the military arm of the Malayan Communist Party (MCP), from until 1960.
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18 March 2014 by Rosalind English
Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch) – read judgment
The High Court has ruled that Convention rights may be engaged in disputes between private landowners and trespassers, thereby making it incumbent on the court under Section 6 of the Human Rights Act to balance the trespassers’ rights under Article 8 against the landowner’s rights under Article 1 Protocol 1.
The claimants, who owned land adjacent to a single track road surrounded by farmland, sought a possession order against the defendant activists who had set up camp close to the road in protest at the drilling program being undertaken by a company to whom the claimants had granted a licence. The protest, which obstructed the road on a number of occasions, was intended to deter the controversial fracking process which the activists feared would ensue.
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17 March 2014 by Guest Contributor
Within the past week the EU Commission has laid down its plans for protecting the rule of law across Europe and, importantly, for punishing member states that fail to meet rule of law standards. At first glance this appears to be a landmark in the EU’s regulation of the rule of law, fundamental rights and democracy, but is it the solution it claims to be?
Between political persuasion and ‘the nuclear option’
In an effort to prevent more proactively systemic breaches of the rule of law and human rights, the EU Commission has published a Communication on its new Framework to strengthen the Rule of Law. The Framework was largely the product of a consultation which was kick-started by President Barroso when he indicated his desire to develop a monitoring mechanism which would offer a middle ground between “political persuasion” and what he called the “nuclear option” of Article 7 TEU.
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16 March 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular spring harvest of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
In the human rights news this week, Theresa May answered calls for a public inquiry into undercover police officers after the publication of the independent review into spying on the family of Stephen Lawrence. Elsewhere, Mormons take on the taxman, the High Court considers how to interpret the law on storing embryos and gametes after death and a House of Lords Committee publishes a major report into the operation of the Mental Capacity Act.
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16 March 2014 by David Hart KC
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment
The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.
At that point, the Attorney-General intervened and signed a certificate saying “no”.
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13 March 2014 by Rosalind English
R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant) [2014] UKSC 17 – read judgment
This was an appeal from a ruling by the Administrative Court that it was procedurally unfair, and therefore unlawful, for BSkyB to have had a disclosure order made against it without full access to the evidence on which the police’s case was based and the opportunity to comment on or challenge that evidence. The following report is based partly on the Supreme Court’s press summary (references in square brackets are to paragraphs in the judgment):
Factual background
Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security. In 2008 he was an “embedded” journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time.
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12 March 2014 by Adam Wagner
I will be giving evidence tomorrow at around 3pm to the Public Bill Committee scrutinising the Criminal Justice and Courts Bill.
I will be giving evidence along with Nicola Mackintosh, Nick Armstrong and Michael Fordham QC, on the potential impact of the Bill on Judicial Review. The session should be available to view online live here. The full programme, which should be very interesting, is listed here.
For more on the Bill, see this recent post by JUSTICE’s Angela Patrick and this one by David Hart QC.
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12 March 2014 by Jessica Elliott
Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary
The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.
Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.
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10 March 2014 by Dominic Ruck Keene
EM (Eritrea) and Others v Secretary of State for the Home Department [2014] UKSC 12 – read judgment
The Supreme Court overturned the Court of Appeal’s decision on the correct test for when an asylum seeker or refugee resists their return to another EU country (here Italy) in which they first sought or were granted asylum. The parties before the court all agreed that the test applied by the Court of Appeal, namely a requirement for a systemic deficiencies in the listed country’s asylum procedures and reception conditions was incorrect.
The Supreme Court agreed and held that even when the Dublin II Regulation was engaged, the correct test was that laid down in Soering v United Kingdom (1989) 11 EHRR 439 – the removal of a person from a member state of the Council of Europe to another country was contrary to the ECHR “where substantial grounds have been shown for believing that the person concerned… faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention].”
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7 March 2014 by Rosalind English
DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) – read judgment
The police have a duty to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner. There had been systemic failings by the police in investigating a large number of rapes and sexual assaults perpetrated by the so called “black cab rapist” amounting to a breach of the of the victims’ rights under Article 3 of the ECHR.
The claimants were among the victims of the so called “black cab rapist” (W), who over a six year period between 2002 and 2008 had committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying in his cab. Both DSD and NVB complained to the police, who commenced investigations, but failed to bring W to justice until 2009. Under the common law the police do not owe a duty of care in negligence in relation to the investigation of crime: See Hill v Chief Constable of West Yorkshire [1989] AC 53 per Lord Keith at pp. 63A-64A and per Lord Templeman at p. 65C-E; Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495; and Smith v Chief Constable of Sussex [2009] 1 AC 225.
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5 March 2014 by David Hart KC
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. THE UNITED KINGDOM, ECtHR, 4 March 2014 – read judgment
An apparently dry dispute about business rates on one of the Mormons’ temples in Preston (see pic) has reached Strasbourg and raises interesting issues about indirect discrimination on religious grounds. The underlying question was whether the temple was a place of “public religious worship” and therefore exempt from rates.
There are over 12 million Mormons in the world, with 180,000 in the United Kingdom and Ireland. Their organisation is important for this application. Local congregations are called wards, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a “stake”. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place.
Preston is one of two temples in the UK. Mormons regard these temples as the holiest places on earth – top of the religious hierarchy. But the question was – is worship there “public”?
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3 March 2014 by David Hart KC
Coventry v. Lawrence [2014] UKSC 13, 26 February 2014, read judgment
The law of private nuisance is the way of balancing the rights of neighours, the right to be noisy or smelly, and to be free of noise or smells. Hitherto it is has been explicitly a private law remedy, and has slightly odd rules. But it has been struggling with public interests for some years; are they irrelevant, or can they carry the day for claimant or defendant in a private nuisance claim?
Fortunately, enough of the big issues bedevilling this area of the law came before the Supreme Court in one fell swoop. And they have led to an important re-balancing of the rules. In particular, public interest is relevant, but not at the first stage of deciding whether someone has a claim, but later – can they get an injunction to stop the noise or should they be confined to damages?
And all this arose in the context of some speedway, stock car, banger and motocross racing in an otherwise fairly rural bit of Suffolk.
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