23 July 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular summer thunderstorm of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
This week, the government’s controversial legislation on same sex marriage received Royal Assent. And, as we welcome a new royal baby, less glamorous facets of the UK’s constitutional arrangements have been in the news.
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20 July 2013 by David Hart KC
“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen. He declares his position up front:
“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”
These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects
thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.
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20 July 2013 by Rosalind English
SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment
This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.
This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.
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18 July 2013 by David Hart KC
Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013 – read judgment
There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months (see my post on this last point) and the permission hurdle to clear.
Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?
The conundrum in this case was – what to do about a set of grounds (drafted by lawyers) filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.
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17 July 2013 by Guest Contributor
In a previous blog post on these pages, the case of Lindsay Sandiford was examined. Sandiford – a British citizen facing the death penalty in Indonesia – had asked the UK Government for funding to help her appeal, but was refused financial help. The Court of Appeal ruled in favour of the Government, stating that the decision to provide legal aid to a British citizen abroad is a discretionary matter for the executive.
Regardless of whether one agrees with the decisions of the Government and the Court, the case raises interesting questions about the obligations that are imposed on states that have abolished the death penalty. The primary duty on states is to simply refrain from imposing the death penalty, but it is possible to detect an emerging secondary obligation to refrain from facilitating the use of the death penalty elsewhere. This issue is particularly relevant to the UK, because although the UK takes a leading role internationally in campaigning for the abolition of the death penalty, there is evidence that the UK has on occasion aided the use of capital punishment elsewhere.
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15 July 2013 by Rosalind English
Thomas James Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783 – read judgment
There was evidence in this case that employees of the Forensic Science Service had altered the exhibit numbers on the evidence in question, possibly to cover up their mistake.
The appellant challenged an order of the court below striking out his claim that the respondent (the FSS) had acted negligently and in breach of his rights under Article 8 of the European Convention on Human Rights.
Factual background
The police had searched the appellant’s home for drugs. During the search, the officers found a bullet which the appellant claimed he had bought as an ornament, assuming it not to be live. Whether it was live could not be discerned from a visual examination, and it was sent to the FSS for analysis.
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15 July 2013 by Rosalind English
R (on the application of AA) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2013] UKSC 49 – read judgment
The Immigration Act 1971, Schedule 2, paragraph 16(2) (“paragraph 16”) empowers the Home Secretary, acting through immigration officers, to detain a person if there is reasonable ground to suspect that he is liable to be removed as an illegal entrant to the United Kingdom. Section 55 of the Borders, Citizenship and Immigration Act 2009 (“section 55”) imposes duties regarding the welfare of children on the Secretary of State and immigration officers in all immigration matters. The issue on this appeal was whether section 55 rendered the appellant’s detention for a period of 13 days unlawful, in circumstances in which the respondent acted in the mistaken but reasonable belief that the appellant was aged over 18.
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15 July 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular Swiss Army Knife of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
The focus of this week’s news was on the European Court on Human Rights’ views on whole life tariffs and miscarriages of justice, which has fed into the recent Abu Qatada deportation and continuing questions about the relationship between the UK, the Convention and the Court. Elsewhere, the Attorney-General was deemed to have lawfully exercised his override to suppress disclosure of Prince Charles’ letters, and there will be no public inquiry into the death of Litvinenko.
Supreme essay success
Top billing this week comes from our very own Daniel Isenberg’s fantastic winning essay in the UK Supreme Court, which has now been published on Guardian.co.uk – Do we need more or fewer dissenting voices in the UK supreme court? [Daniel did not put his own essay in top billing, it was me – but from everyone at UKHRB, we wish him hearty congratulations! Adam]
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12 July 2013 by Guest Contributor
While MPs were dreaming of the imminent long summer break and a possible pay hike, in mid-June the Government produced the draft amendments to the Civil Procedure Rules (“CPR”) necessary to bring Part 2 of the Justice and Security Act 2013 (“JSA”) into force. Many – including JUSTICE – consider the Act’s introduction of closed material procedures (“CMP”) into civil proceedings unfair, unnecessary and unjustified.
That one party will present their case unchallenged to the judge in the absence of the other party and their lawyers is inconsistent with the common law tradition of civil justice where proceedings are open, adversarial and equal. This blog has spent many pages dissecting the constitutional implications of the expansion of CMP in the JSA and its controversial passage through both Houses of Parliament.
Perhaps in a bid to avoid similar controversy, the draft Rules were dropped quietly into the libraries at the Houses of Parliament without fanfare. Less than two weeks later and without significant change, the Rules were tabled.
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11 July 2013 by David Hart KC
The UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J, 10 July 2013 read judgment
Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length – Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.
The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.
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10 July 2013 by Adam Wagner
Updated – headline now corrected | Remember when The Sun was reprimanded by the Press Complaints Commission for muddling up the European Union and our local Court of Appeal in a story about a human rights judgment? You probably should because it happened just two weeks ago.
Well, despite telling the PCC that they would incorporate the issue into its staff training programme, The Sun has been at it again following yesterday’s European Court of Human Rights ruling on whole life sentences. The politics section of its website currently shows this on the sidebar:
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10 July 2013 by Sarabjit Singh
On 5th July 2013, the report of the inquiry into the death of Azelle Rodney was published. Mr Rodney was a 24-year-old man who was shot dead by a Metropolitan Police officer on 30th April 2005. Mr Rodney was the rear seat passenger in a vehicle driven by an acquaintance of his and was unarmed.
After the Metropolitan Police had brought the vehicle to a halt, a firearms officer, described as ‘E7’ in the inquiry’s report, shot Mr Rodney 6 times without warning with a Heckler & Koch assault rifle. The fifth and sixth of these shots were a military-style ‘double tap’ to Mr Rodney’s head and would have been fatal. E7 then briefly paused before shooting Mr Rodney a further two times in the head. These shots would also have been fatal.
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9 July 2013 by David Hart KC
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 9 July 2013 – read judgment
As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.
No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.
The complication, as we shall see, is that the override is built into FOIA.
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9 July 2013 by Andrew Tickell
Brought to you by Andrew Tickell
Radical changes are afoot in Strasbourg. Protocol No. 15, whose outlines were agreed at the Brighton Conference of 2012, is primed for ratification, while at the start of 2014, new Rules of Court will come into effect. Both have the potential to have a wide-ranging impact on applicants. Protocol 15 rewrites the Convention’s preamble, emphasising the Court’s “subsidiary” role in the protection of human rights.
It also modifies two of the admissibility criteria for petitions, pairing back the safeguard clauses initially erected around Protocol 14’s new criteria of “no significant disadvantage” and trimming the time available for applicants to lodge their cases from six months to four.
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9 July 2013 by Rosalind English
Vinter and Others v. the United Kingdom (Grand Chamber: application nos. 66069/09, 130/10 and 3896/10) – read judgment
The Strasbourg Court has upheld three applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they have no hope of release.
The following is a very brief summary of the judgment. A full analysis of the case will follow shortly.
Principal facts
The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals who were born in 1969, 1961 and 1946 respectively. All three men are currently serving sentences of life imprisonment for murder. Bamber murdered five members of his family brought the case along with serial killer Peter Moore and double murderer Douglas Vinter.
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