16 March 2012 by Clare Ciborowska
A v Band C [2012] EWCA Civ 285 – read judgment
In a case concerning a lesbian couple and a known biological father, Court of Appeal reconfirms approach when dealing with cases under the Children Act 1989 – the child’s welfare is paramount.
Background
This case concerned an application by a biological father for contact with his son who was living with his mother and his mother’s long-term lesbian partner. The three adults in the case had been friends for many years and indeed the father had married the mother before the child was born in an attempt to placate the mother’s family who were deeply religious. It was accepted that this was a marriage of convenience and as a result the father acquired parental responsibility for the child.
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15 March 2012 by Rachit Buch
Malik v United Kingdom 23780/08 [2012] ECHR 438 (13 March 2012) – Read judgment
The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.
Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.
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15 March 2012 by David Hart KC
Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site. The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity to deal with his concerns.
So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.
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15 March 2012 by Rosalind English
The road to hell as we know is paved with good intentions and here they are, laid bare by the Daily Politics broadcaster in his exposition of everything that has gone wrong with the Convention since it was forged in the crucible of two world wars.
Post war prosperity ensured that genocide and dictatorships did not arise again. But the Convention has become a “political poison” that goes to the very core of how the country is governed.
In “Rights and Wrongs” Neil declares that he is trying “to cut throughout the hype and confusion” surrounding the subject, and his approach is undeniably forthright and populist. No doubt he will be castigated severely for poor reporting. But to be fair, he points out that the media had exaggerated some judgments – you can’t avoid deportation merely by owning a cat, but you can if you have a settled family who happens to own one. He also cites a number of decisions from Strasbourg that most people in this country would support, or at least think nothing of these days – gays in the military, the abolition of corporal punishment in schools, freedom of the press (particularly the ruling that saved Andrew Neil from jail during the Spycatcher affair in the 1980s).
But – inevitably – the documentary focussed on the cases of Abu Qatada and Aso Mohammed Ibrahim, the asylum seeker whose car hit and killed 12-year-old Amy Houston, and who successfully resisted deportation because of his right to a family life.
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15 March 2012 by Adam Wagner
The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title – Equal civil marriage consultation – the Government is only proposing to remove the ban on civil gay marriage.
The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.
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14 March 2012 by Henry Oliver
The Court of Appeal has ruled that there is no “near miss” principle in the application of the Immigration Rules. People who miss the five years’ continuous residence requirement – even if by two weeks – will not have met the rules. There is no exception.
Mr Miah’s application for further leave to remain as a Tier 2 (General) migrant was refused by the Home Secretary. As was his application under Article 8 (right to private and family life) of the European Convention on Human Rights, and the application of his wife and child to be his dependents. His appeal to the First Tier Tribunal was unsuccessful, as was his appeal to the Upper Tribunal.
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13 March 2012 by Karwan Eskerie
Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment
“Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”
A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:
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13 March 2012 by Guest Contributor
This post, by Angela Patrick, Director of Human Rights Policy at JUSTICE, is the fourth in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.
His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.
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13 March 2012 by Rosalind English
Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) – read judgment
Jean-Dominique Bauby’s eyelid-blinking account of Locked-in Syndrome had us all quivering at the thought of being blindsided, as he was, at the peak of his career, on some banal afternoon outing. One moment you’re in charge, the next, you’re a living, conscious cadaver, entirely at the mercy of your family (if you’re lucky), the state (inevitably), and, you’re very unlucky, the police.
This is humanity at its most pinched and wretched, one might have thought more in need of the arsenal of human rights than any other situation. But all the big guns are elsewhere, it seems. We have the political stand-off in the Bill of Rights Commission, and all the other noisy controversial products of the human rights industry, welfare, asylum, crime, deportation, prisoner rights and press freedom. In the meanwhile, a much quieter, but much starker drama unfolds in the wake of Pretty , Purdy et al. Now we have Tony Nicklinson, whose case takes human rights ideology back to its roots: a person with his back against a wall.
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12 March 2012 by Adam Wagner
As a sequel to this morning’s post on Michael Pinto-Duschinsky’s resignation from the Commission on a Bill of Rights, a comment on his Daily Mail article: I escaped the Nazis – so spare me these sneers about tyranny.
Pinto-Duschinsky explains that because he and his family escaped the Nazis, he has a special perspective on human rights:
I know what the abuse of human rights really means. It is certainly not the kind of nonsense we hear so much about today – parents smacking children, the eviction of travellers from illegal encampments or the deportation of foreign criminals in breach of their supposed ‘right to a family life’.
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12 March 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly summary 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
It’s been another big week for human rights, with the draft Brighton Declaration again sparking insightful discussion from a range of sources. Also in the news, concerns seem to be rising over open justice, with secret evidence, the Justice and Security Green Paper and access to court materials all raising concerns in the media. To round off the week, there’s the CPS’s new guidance on prosecution for criminal offences committed during public protests, a roundup of important cases to look out for in the upcoming weeks, and the mandatory (for myself, anyway) update on the Abu Qatada saga.
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12 March 2012 by Adam Wagner
Updated | Dr Michael Pinto-Duschinsky has told the BBC’s Sunday Politics that he is resigning from the Commission on a Bill of Rights, effectively citing artistic differences. The seven other commissioners apparently wrote to the Justice Secretary stating Pinto-Duschinsky was “significantly impeding [the Commission’s] progress”. He has also written an article in the Daily Mail explaining why he quit (see my other post responding to that).
I argued last week that the Commission should open up more, but leaked internal emails were not exactly what I had in mind.
The resignation is hardly a surprise. Pinto-Duschinsky’s relationship with the other Commissioners has been rocky from the start, and he has been unabashed about complaining publicly when he has felt his views were being ignored. When the Commission published its initial consultation document he instantly told the Daily Mail that he ”strongly regret[ed] the terms in which it has been presented.” He was concerned that the document ignored the extent to which the European Convention had undermined Parliamentary Sovereignty. However strong Pinto-Duschinsky’s views, this public airing of Commission laundry must have made very difficult to hold reasoned debates behind closed doors.
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9 March 2012 by Henry Oliver
In W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment
The Supreme Court has made a difficult decision. It is sometimes said that hard cases make bad law: this ruling may prove to be a good example of that cliché. The court was not being asked whether the Special Immigration Appeals Committee (SIAC) was legally allowed to issue orders that means evidence “will forever remain confidential” but rather the question was, “can SIAC ever properly make an absolute and irreversible order.”
The principles of open justice would tend towards the answer being no – but the court prioritised the welfare of the witness and allowed the order.
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9 March 2012 by Guest Contributor
The European Convention (via CoE)
This is the third in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.
At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.
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8 March 2012 by Guest Contributor
This is the second in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Reactions to proposals for reforming the European Court of Human Rights contained the recently leaked Draft Brighton Declaration have been rightly critical. Concerns have been directed at specific features which could impact on the essential role and function of the Court, inhibit access to the court for victims, and which may prejudice the practical impact of the HRA 1998 and the debate on replacing it with a UK Bill of Rights.
It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.
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A v Band C [2012] EWCA Civ 285 – read judgment 
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