Education not recognised as a “civil right” under Convention due process rules

29 March 2010 by

R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142

(Read judgment here)

CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010

An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.

Summary

The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).

Continue reading →

Recent posts roundup

29 March 2010 by

European Commission warns the UK about unfair cost of challenging environmental decisions

28 March 2010 by

The European Commission has sent an official warning letter to the UK regarding the prohibitive expense of challenging the legality of environmental decisions.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed by the United Kingdom in 1998, and came into force in October 2001.  It was ratified by the United Kingdom in February 2005, at the same time as its ratification by the European Community.  Article 9(4) of the Convention provides that access to environmental justice must be fair, equitable, timely and not prohibitively expensive.

The European Convention on Human Rights (ECHR) does not provide for a specific human right to a clean environment, nor a right to environmental justice, although Article 2 (right to life), Article 6 (right to a fair trial) and Article 8 (respect for family and private life) do provide some scope for environmental protection, Conventions such as Aarhus are important in supporting these rights in an environmental context, particularly where the ECHR may provide inadequate protection. This connection is recognised in the preamble to the Aarhus Convention which identifies that, “the adequate protection of the environment is essential for human well-being and the enjoyment of basic human rights, including the right to life itself.”

Continue reading →

European Court rejects UK pensioners’ top-up claim

28 March 2010 by

Carson and Others v The United Kingdom (Application no. 42184/05)

The European Court of Human Rights has rejected a claim by British pensioners living abroad that their pension payments should be uplifted to take into account inflation. The case was supported by Pension Parity UK, a pressure group. The majority in the Court held that the pensions system was not a breach of ECHR Article 14 (non discrimination), saying at [86]:

Continue reading →

Sharper teeth for the European Court of Human Rights?

24 March 2010 by

According to Alex Bailin QC and Alison Macdonald writing in The Guardian, the European Court of Human Rights will soon have much needed power to filter cases at an early stage, and therefore begin to clear its huge backlog of cases:

Fortunately, in January a significant stalemate was broken when Russia finally ratified a six-year-old provision which will speed up the court’s processing of cases. Protocol 14 provides for a more robust and rapid filter of weak cases, with a single judge having the power to declare wholly unmeritorious cases inadmissible, without any right of appeal. “Repetitive cases” can also be blocked if a relevant ruling on similar issues has already been given. Most controversially, the court can also refuse to hear cases in which the applicant has suffered “no significant disadvantage”, providing the case was properly considered by the domestic courts in the relevant state. Russia had previously blocked the entry into force of Protocol 14 in protest at what it considered were “political rulings” of the Strasbourg court, primarily relating to the conduct of its operations in Chechyna.

One immediate effect which the change will have on the UK, according to the authors, is in relation to prisoners voting rights. Until now, even though the Court has criticised the UK in relation to this issue, the criticisms have not led to an actual change in UK policy. However, as a result of Protocol 14:

The Committee of Ministers can refer a case back to the European court if it considers that the state has not fully complied with a decision of the court. If the court agrees, the committee can decide to take action against the state for noncompliance – including, in theory, suspension or expulsion from the Council of Europe

Read more:

Share

Recent case summaries

20 March 2010 by

Not unlawful for a Roman Catholic adoption agency to reject same-sex couples

19 March 2010 by

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales (Equality and Human Rights Commission intervening) [2010] EWHC 520 (Ch)

The High Court have found that a Roman Catholic adoption agency (Catholic Care) could rely on regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007 in refusing same-sex couples adoption services.


Continue reading →

Are civil partnerships compatible with human rights law?

17 March 2010 by

Baroness Deech, the Chair of the Bar Standards Board, has given the second lecture in her series on family law at Gresham College. In this lecture she questions whether the current law of marriage is compatible with human rights law. In particular, homosexual couples cannot legally marry, and hetrosexual couples are disbarred from entering civil partnerships. She said:

“Since [the] acceptance and recognition [of gay rights] has grown, advanced by the Human Rights Act 1998 and the Equality Bill 2010. Gay couples may adopt children (Adoption and Children Act 2002); they have access to fertility services and full parentage of donor conceived children (Human Fertilisation and Embryology Act 2008). Same sex childless couples are deemed to be a “family” for the purpose of succeeding a deceased partner to a tenancy (Fitzpatrick v Sterling Housing Association [1998] Ch.304). This trend culminated in the legislative establishment of civil partnerships in the Civil Partnership Act 2004, creating a union almost identical to, but not marriage.”

Continue reading →

Key armed forces case opens in the Supreme Court

16 March 2010 by

Private Jason Smith

The case of R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another is being heard today in the Supreme Court.

The Secretary of State is appealing the 2009 decision of the Court of Appeal: See our case comment from the Court of Appeal judgment.

In short, the respondent’s son Smith was a member of the Territorial Army who had been posted to Iraq in June 2003. He had spent eight days in Kuwait for the purpose of acclimatisation. The room he occupied in Iraq did not have air conditioning. In August 2003 temperatures in the shade reached in excess of 50 degrees C, which was the maximum that available thermometers could measure. He reported sick complaining that he could not stand the heat. Some days later he suffered a cardiac arrest.

In this appeal the secretary of state appeals against the decision of the Court of Appeal ([2009] EWCA Civ 441) that the deceased had been within the jurisdiction of the United Kingdom for the purposes of the Article 1 of the European Convention on Human Rights 1950 and the Human Rights Act 1998 and that, consequently, the inquest into his death had to comply with Article 2.

The hearing is expected to last for four days. See coverage in The Times and the The Guardian.

Share

Have MI5 “inflicted a body blow on their own reputation”?

12 March 2010 by

David Pannick QC says in an article in the Times that the controversy surrounding the Binyam Mohammed case has been a disaster for the security services and has highlighted the need for more effective supervision:

The sorry saga of the Binyam Mohamed litigation has required the judiciary to strip away evasions and half-truths by the Security Services that have inflicted a body blow on their own reputation.

He concludes:

The courts, here and in the US, have performed their constitutional role of identifying and publicising unlawful acts of torture. There is now an urgent need for effective supervision and accountability of our intelligence services. Existing methods of parliamentary control have plainly been inadequate. As MI5’s in-house lawyer acknowledges in John le Carré’s novel The Russia House, his “old law tutor would have turned in his grave” at the lack of legal controls.

The full article is available here. You can read our analysis of the case here.

Share

Exceptionally serious circumstances must be established to resist extradition order says Supreme Court

5 March 2010 by

Norris v United States [2010] UKSC 9

SC (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr) 24 February 2010

In determining whether interference with an individual’s right to a family life was justified to achieve the aim of extradition, the court should not consider whether the circumstances were exceptional but should consider whether the consequences were exceptionally serious

SUMMARY

The appellant had recently retired from his job as CEO of a company that had been involved in price fixing. He had successfully resisted an extradition order sought by the United States on the grounds that price-fixing in the UK was not illegal (Norris v United States (2008) UKHL 16, (2008) 1 AC 920). However, the court held that the other charge against him – obstructing justice – justified extradition and his case was remitted to a district judge. The district judge decided that he should be extradited. His decision was upheld by the divisional court, which concluded that the obstruction of justice charges were very grave and that a high threshold would have to be reached before the appellant’s rights under Article 8 could outweigh the public interest in extradition ((2009) EWHC Admin 995, (2009) Lloyd’s Rep FC 475).

Read judgment here or

Continue reading →

Should children be protected against giving evidence in court?

5 March 2010 by

Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]

The Supreme Court has ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR).

At issue in this case is the care of five children. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.

In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link.  In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.

Continue reading →

Towards a UK Bill of Rights?

2 March 2010 by

The proposals for a UK Bill of Rights will be an important issue in the coming election, and we aim to keep you updated on developments. The Equality and Human Rights Commission has published a research report on a potential UK Bill of Rights. All three of the major UK political parties have pledged to institute a bill of rights in some form. The Report summarises the position:

The Labour Government is consulting the public on a UK Bill of Rights and Responsibilities, while maintaining its commitment to the HRA, including both the rights enshrined in it and the mechanisms used to implement those rights. The Conservative Party has pledged to repeal the HRA and replace it with a ‘modern British Bill of Rights’. Repealing the HRA would mean that the European Convention on Human Rights (ECHR) would no longer be incorporated into domestic law; the party has not indicated whether, or how, a future Bill of Rights might incorporate the ECHR using a different mechanism. The Liberal Democrats are committed to a written constitution with, at its heart, a Bill of Rights which would strengthen and entrench the rights guaranteed in the HRA.

Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: