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The Justice and Security Bill, which will allow secret ‘closed material’ hearings to take place in civil trials, has been quietly (almost too quietly) making its way through Parliament. The Bill will allow judges to exclude lawyers, press, the public and even litigants in their own cases from civil hearings which involve national security.
Kafkaesque is a term used in almost every critical article about law ever written. But I have read The Trial (I really have!), and the effect of these proposals is not too far from that.
The key development is that many of the amendments forced through in the House of Lords under the leadership of Lord Pannick have been reversed by the Government. We have a full update coming later on the progress of the Bill, but I thought that in the mean time I would highlight a few up to date resources and developments:
Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: see judgment. On Tuesday 19 February, the US Supreme Court heard opening arguments in the latest stage of the battle between a 75 year old farmer and the agri-giant Monsanto, over whether patents on seeds — or other things that can self-replicate — extend beyond the first generation of the products. The dispute in Bowman v Monsanto goes to the heart of the debate over the patenting of living organisms. This of course is also at the centre of the Myriad breast cancer gene litigation which I covered here.
The case is fascinating not just because it exposes the limits of patent law in an era of fast-growing biotechnology, but because it seems to speak to the concerns of the anti-GM lobby – the stranglehold of big corporations over farmers, the fear of transgenic organisms themselves and their consequences for agriculture. But Green woo about the dangers of genetically engineered crops will not find judicial endorsement in this litigation, despite the multiple briefs filed in support of Bowman, attacking GM technology. This is an inquiry into the reality or otherwise of patenting nature, not the morality thereof. As The Atlantic summarises it:
It’s a story about technology and innovation and investment, about legal standards and appellate precedent and statutory intent, about the nature of nature and how the law ought to answer the basic question of who owns the rights to the seeds of planted seeds. Continue reading →
Baroness Helena Kennedy has argued that judges have a tendency to clone themselves when choosing successors. It is hard to avoid that impression in the Supreme Court, which kept its white male first eleven in place yesterday by appointing three new justices: Lord Justice Hughes, Lord Justice Toulson and Lord Hodge. The sole woman amongst 12 justices of our highest appeal court remains Lady Hale. There are no black or Asian judges, not have there ever been.
How did this happen? The answer is we don’t know and won’t ever find out. Around two thirds of the Supreme Court’s case load are public law and human rights, decisions which affect millions of people. Yet appointments are made by an opaque commission consisting of senior judges.
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – Read judgment
The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.
The narrowness of the majority might have had something to do with the fact that the father of the Child had been a party to the case in the domestic courts and opposed the adoption (although the fact that the child of the lesbian couple in Gas and Dubois v France had been conceived through anonymous donor insemination had not helped that case). In the event, the Grand Chamber decision was based on the fact that the Austrian Supreme Court had referred to the “legal impossibility” of the proposed same sex adoption in this case.
Welcome back to the UK Human Rights Roundup, your regular booster shot of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Unsurprisingly, Theresa May’s views on the role of immigration judges sparked much debate this week – yet haven’t stopped the judges making findings that Immigration Rules are unlawful. The consequences of the dismissal of the Pryce jury are still playing out, while the Strasbourg Court has made an important ruling on discrimination based on sexual orientation. Keep an eye out on some new events advertised this week, and various updates in the legal blogging world.
Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701 (17 January 2013) – read judgment
The Employment Appeal Tribunal (EAT) has found that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Background
The Appellant, a casual sub-editor on the Times Newspaper, was a Roman Catholic. He was working at the Times during the visit to the United Kingdom of the Pope in 2010. During March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest. There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?”. When there was no response he repeated the question more loudly. The Appellant was upset and offended what he heard. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief. Continue reading →
Another title for this post might have been “they did not want to understand the judgment.”
In light of recent shenanigans, it seems apt to reproduce the first five paragraphs of the 25-year-old Court of Appeal judgment in (1) Nadarajah Vilvarajah, (2) Vaithialingham Skandarajah v Secretary of State For the Home Department 1990 WL 754859 (Update – download from BAILII here), which I was alerted to by a colleague. Sir John Donaldson, then Master of the Rolls, complains in withering style about media coverage of a recent judgment. The last line is the best, although a little depressing.
Lessons learned? The more things change, the more they stay the same. Political posturing over immigration and asylum law long predated the Human Rights Act. And Law in Action was as good then as it is now.
The Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday(to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.
Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – Read judgment
This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.
She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.
It may be a little early to predict the lasting impact of the horsemeat to-do on the law. But one might make a lunge at the following : (i) contractual claims by supermarkets professing outrage, cascading further and further through supplier and sub-supplier until they end up with some far-flung abattoir in Romania, (ii) the odd trading standards prosecution, (iii) a chancy group action by those who say they were horrified at the thought that they might have let horse pass their lips; and (iv) the Horsemeat (It Will Never Happen Again) Regulations 2013 SI 9999/2013 (no link yet available). It is perhaps as well to rein in too much speculation at that point.
But it is timely to say something about when and how much horse our linguistic ancestors ate. By a curious coincidence, I am at the moment reading a book which tells us all about that and lots of other things.
Welcome back to the UK Human Rights Roundup, your regular booster shot of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Survey on LASPO impact
ilegal founders Patrick Torsney and Colin Henderson have launched a survey in collaboration with Centre for Human Rights in Practice researchers at the University of Warwick, focused on discerning the impact of LASPO legal aid cuts to professionals working in relevant sectors and their clients. Participation has been encouraged by both the Legal Voice and Pink Tape blogs, and the survey itself may be found here.
The Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction. Continue reading →
Moore v British Waterways Board [2013] EWCA Civ 73 – read judgment
A boat owner has won his appeal against the British Waterways Board preventing him from mooring his boats alongside his land on a tidal stretch of the Grand Canal. Although he had no common law right to permanently moor the boats, he had committed no actionable wrong in doing so, and they were therefore not moored “without lawful authority” within the meaning of the British Waterways Act 1983. This judgment is an interesting and important endorsement of the principle in English law that everything is permitted except what is expressly forbidden.
This key “rule of law” principle applies as much to the BWB as it does to the police and other law enforcement agencies. Continue reading →
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Updated: The Supreme Court has now ruled on this case, rejecting Bowman’s appeal: 
Baroness Helena Kennedy
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – 
Welcome back to the UK Human Rights Roundup, your regular booster shot of human rights news. The full list of links can be found 
Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701 (17 January 2013) – 
The Home Secretary, Theresa May, is no stranger to 
RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – 
It may be a little early to predict the lasting impact of the horsemeat to-do on the law. But one might make a lunge at the following : (i) contractual claims by supermarkets professing outrage, cascading further and further through supplier and sub-supplier until they end up with some far-flung abattoir in Romania, (ii) the odd trading standards prosecution, (iii) a chancy group action by those who say they were horrified at the thought that they might have let horse pass their lips; and (iv) the Horsemeat (It Will Never Happen Again) Regulations 2013 SI 9999/2013 (no link yet available). It is perhaps as well to rein in too much speculation at that point.
Welcome back to the UK Human Rights Roundup, your regular booster shot of human rights news. The full list of links can be found 
The Home Secretary has 
Tamiz v Google Inc [2013] EWCA Civ 68 –
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