13 June 2011 by Graeme Hall
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Graeme Hall
In the news:
The big UK Human Rights Blog news is the launch of our new Case Table. Click here to see it.
Writing for the UK Constitutional Law Group blog, Professor Gordon Anthony summarizes the Supreme Court’s decision in Re. McCaughey. Following developments in the European Court of Human Rights’ case-law, the Supreme Court ruled that under article 2 of the European Convention on Human Rights (the right to life), the procedural obligation to investigate deaths possibly caused by State agents is “detachable” from the State’s substantive obligation to protect the right to life of its citizens.
Whilst concluding that the implications of the McCaughey judgment are probably straightforward, the post outlines the Supreme Court’s criticisms of the European Court’s reasoning, as well as some of the possible consequences of its poorly reasoned judgments. See also Matthew Hill’s post today on this blog.
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13 June 2011 by Matthew Hill
McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment
The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?
The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length. The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.
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10 June 2011 by Rosalind English
In the matter of E (Children) [2011] UKSC – read judgment
The Supreme Court has ruled that two girls, aged seven and four respectively, be returned with their mother to Norway, after she had removed them without the father’s consent. The decision was made largely under the Hague Convention on the Rights of the Child which gives more specific direction to the courts in abduction cases than the European Convention on Human Rights, although, as the Supreme Court observed, a little more reassurance that the necessary safeguards can be enforced in the destination country would make it easier for the courts in the requesting country to make orders protecting the interests of the child.
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10 June 2011 by Maria Roche
RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – Read Judgment
Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal. This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.
The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.
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9 June 2011 by Guest Contributor
The Supreme Court has been streaming its hearings live on the internet for three weeks now, but this week sees the first case to be streamed which has significant implications for human rights.
And, as a bonus, you can watch one of our editors, Angus McCullough QC, who is representing the Secretary of State for the Home Department. Andrea Lindsay Strugo, also of 1 Crown Office Row, is junior counsel for the Secretary of State. Richard Drabble QC is for the appellants.
From 10am, you can click here to watch the second and final day of R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant). For the basic background, see Adam’s post on the court of appeal judgment, formerly known as Quila and Others – Policy to prevent forced marriages “arbitrary and disruptive”, says Court of Appeal.
We understand that at present the stream is viewable around the world, although as in the UK you will have to download Microsoft Silverlight (free).
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9 June 2011 by Rosalind English
Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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7 June 2011 by David Hart KC
Our guest post from Frances Aldson last week drew many and varied comments from our readers on this blog and elsewhere, including those at each end of a spectrum ranging from the enthusiastic to the choleric.
This follow-up post is designed for those who have no strong views but who want to muse on the implications of the proposal which is due to be raised, via one route or another, with the UN, either this year or next.
The proposal, by Polly Higgins, is to add a new crime of “ecocide” to the jurisdiction of the International Criminal Court, namely:
Ecocide is the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
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7 June 2011 by Alasdair Henderson
R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108 – read judgment here.
1 Crown Office Row’s John Joliffe appeared for the Secretary of State for Justice in this case. He is not the writer of this post.
The High Court held last week that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs.
Recent claims or defences on the basis of Article 9, the right to freedom of thought, conscience and religion, have mostly been unsuccessful – see our comments on the Catholic adoption agencies, fostering and Cornish hotel cases, as well as Aidan O’Neill’s feature article. However, in this case His Honour Judge (HHJ) Pelling QC held that the failure to even consider a prisoner’s Article 9 rights meant that the decision to discipline him was fatally flawed.
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6 June 2011 by Adam Wagner
Updated | Recently, I have become a collector of visceral reactions by politicians to judgments. The Prime Minister David Cameron is leading the field, having been “uneasy“, “appalled” and even feeling “physically sick” over recent rulings. And this week the Scottish First Minister has appointed a panel of experts to see whether the UK’s Supreme Court’s “aggressive” interference with Scottish law can be stopped. But where is this criticism leading?
Leaving aside the political posturing and blame-shifting which unhelpfully characterises this debate, one interesting question which has emerged has been whether the current system of Supreme Court judicial appointments is fit for purpose.
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6 June 2011 by Graeme Hall
It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
by Graeme Hall
In the news:
Joshua Rozenberg, critical of the decision to appoint Jonathan Sumption QC to the Supreme Court, reports that Parliament is consulting on whether it should intervene in judicial appointments. Indeed, a guardian.co.uk Editorial has suggested that the best way for the judiciary to defend itself against accusations by Parliament of over-stepping its authority, is to make itself more diverse. Adam Wagner has previously blogged about the (lack of) diversity in the upper echelons of the judiciary and has also published a two-part series on the power of unelected judges here and here.
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6 June 2011 by John Joliffe
Access to environmental justice is a subject close to the hearts of various contributors to this blog, as one can see from the posts listed below. But not only to them – Sullivan LJ was the chairman of the working group that in 2008 wrote “Ensuring Access to Environmental Justice in England and Wales”. Jackson LJ returned to the issue in his report on the costs of civil litigation. In December last year the Supreme Court referred to the Court of Justice of the EU, Edwards, a case about the English costs regime, and whether it complies with the Aarhus convention. Finally, in April 2011 the European Commission said it was going to refer the UK to the CJEU for failing to comply with the costs element of the Convention.
So the UKELA seminar on “Developing the new Environmental Tribunal” hosted by Simmons & Simmons on 16th May 2011, was timely, to say the least, particularly as the speakers included Lord Justice Sullivan, and Lord Justice Carnwath the senior president of the Tribunals, and Professor Richard Macrory Q.C., author of a new report on the Environment Tribunal.
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6 June 2011 by David Hart KC
The ticklish question of how to come up with a cheap but effective form of environmental judicial review still has not been answered.
One way talked about at a recent seminar on environmental tribunals (see John Jolliffe’s post of today) is to use the environmental part of the new tribunal system, and have judicial reviews heard by judges sitting there. As John noted, the advantage to claimants is that there is a general practice in the part of the tribunal dealing with land disputes that costs are not awarded against them if they lose – unless they have been thoroughly unreasonable.
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3 June 2011 by David Hart KC
Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change & Anor [2011] EWCA Civ 664 – Read judgment
You depend on a subsidy for developing a new technology. You say that Government is not giving you a big enough subsidy. You sue Government who says, er, yes we worked it out wrong – but now, doing it right, we come up with the answer we came up with in the first place. A lawful or unlawful decision by Government?
This was the conundrum facing the Court of Appeal in Tate & Lyle v. Department of Energy & Climate Change.
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3 June 2011 by Adam Wagner
Updated x 2 | Yesterday’s article by Alex Aldridge on Guardian.co.uk – Why barristers balk at the ‘box-ticking’ of continuing professional development – has sparked a furious (well, furious-ish) debate in the comments section and Twitter over whether legal blogging and tweeting should be included in barristers’ compulsory Continuing Professional Development (CPD) hours.
My view is that legal blogging, and possibly even legal tweeting, should be included in CPD, and currently the former almost certainly is. But this is set to change if the Bar Standards Board’s (BSB) new proposals are accepted, cutting blogging out of CPD completely. This is a bad idea, for reasons I will explain.
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3 June 2011 by Lucy Series
I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror. What legal mechanisms were available to prevent abuses like this, or bring justice to victims?
There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights. It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.
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