The Adoption Dilemma: the rights of parents v child’s interests

2 June 2011 by Rosalind English

R. and H. v. United Kingdom (no. 35348/06) – Read judgment

This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.

Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.

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And about time for rights to nature? By Begonia Filgueira

2 June 2011 by Guest Contributor

It took until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. In light of the dangers posed by climate change, is it time to go one step further and grant rights to the Earth herself?

Bolivia has done just that – the Mother Earth Rights Law (Ley 071(21 December 2010)) has now come into force.  Congratulations to everyone involved in drafting and promoting this law.  With Evo Morales’ Party (the Movement Towards Socialism) having a majority in Congress and the Senate, this law passed without much opposition.  It is a wonderful legal milestone, which I have been advocating for a number of years as the only way to balance the rights that humans have with the protection of the Planet and ultimately the human race.

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Effective “amnesty” in UK asylum system, says report

2 June 2011 by Adam Wagner

The House of Commons Home Affairs Committee has today published a report, The work of the UK Border Agency (November 2010–March 2011), which accuses the UKBA of effectively creating an amnesty for hundreds of thousands of asylum seekers whose cases have been delayed for years.

The report is not particularly easy to find online – it should be available on the Home Affairs Committee website, but isn’t for some reason. You can download a PDF here, see the previous reports here or read on this page via Scribd.

As has been picked up in media reports, the report concludes that the UKBA’s success in clearing a backlog of around 400,000 to 450,000 unresolved asylum cases has been achieved

through increasing resort to grants of permission to stay… or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the Agency has no idea whether or not the applicant remains in the UK, legally or otherwise.

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When detaining foreign criminals the rules are the rules, says Supreme Court

2 June 2011 by Matthew Flinn

Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 – Read judgment

The Supreme Court has decided by a majority that a failure to review the detention of an immigration detainee, in accordance with immigration policy, meant that his detention was unlawful.

Immigration law always has the potential to be a political tinderbox, particularly in tough economic times when unemployment rates are high. Indeed, persistent governmental rhetoric about taking net migration “back to the levels of the 1990s” and “protecting the public” might seem to suggest that “tough on immigration” is the new “tough on crime”. The issues can be particularly acute in relation to foreign national prisoners (“FNPs”). This was demonstrated in 2006 when the Home Secretary Charles Clarke was urged to resign when it was discovered that about 1,000 FNPs had been released without being considered for deportation.

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Is it time for a crime of ecocide? – Frances Aldson

2 June 2011 by Guest Contributor

Most now accept that the Earth is fragile, but can the legal system help to secure its future? 

Among the ideas currently gaining currency is adding a crime of ecocide to the jurisdiction of the International Criminal Court (ICC).  If this idea is accepted, ecocide would join war crimes, aggression, crimes against humanity and genocide as a fifth crime against peace.

The rationale behind the campaign for a crime of ecocide is similar to that of other ecological legal initiatives; namely, that addressing environmental imperatives requires a seismic shift in attitudes, practices and culture, in both the corporate and political spheres.  Catastrophes such as Deepwater Horizon highlight the failure of existing mechanisms to ensure that the commercial world’s financial and economic prowess is matched by a duty of care for the planet on which it operates, and the rights of both its current inhabitants and those yet to come.

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New anti-terrorism bill published

1 June 2011 by Adam Wagner

Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week. 

The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?

Some useful links for more information on the bill:

• Download a PDF version of the bill – also available below through some technical jiggerypokery (Scribd)
• Track the progress of the bill through Parliament (you can even get updates via RSS or email)
• The Home Office press release, including a summary of the bill (reproduced below).
• The interesting European Convention on Human Rights memorandum, which includes detailed analysis of the human rights challenges to control orders so far.
• The January 2011 Review of Counter Terrorism and Security Powers
• Update – The House of Commons Library briefing paper on the bill (thanks to AlexanderHorne1)

Control orders and human rights to family life: not always incompatible

1 June 2011 by Isabel McArdle

CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment

As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.

The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.

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No right to enforce EU air pollution law: only a Crackerjack pencil

31 May 2011 by David Hart KC

More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.

Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General  thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed  – in English.

The problem arose because the EU made two directives which didn’t talk to each other.

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Twitter reveals, more privacy, drug courts – The Human Rights Roundup

31 May 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. Happy post Bank Holiday reading!

by Graeme Hall

In the news:

Whilst the Neuberger Committee’s report is arguably the best place to kick-off any discussion on privacy, freedom of expression and Super-Injunctions, it is not, as Inforrm’s blog concludes, the “last word” on the matter. Indeed, this “overinflated topic” has been tackled with such gusto by the press and blogosphere that the High Court clearly gave a yellow card for “widespread disobedience“.

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The power of unelected judges – Part 2 of 2

30 May 2011 by Adam Wagner

Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.

Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,

this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.

Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.

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The power of unelected judges – Part 1 of 2

30 May 2011 by Adam Wagner

Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts.

he also believes that there are important constitutional principles at sake in this case about how Ministers make important and urgent decisions and what the role of the courts is in challenging such decisions. Gove wants the Supreme Court to consider these issues because of the huge importance of judicial reviews, which are being used repeatedly by opponents of the government to try and stymie its agenda.

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Old laws v. new policies: Parliamentary privilege but not a footballer in sight

28 May 2011 by David Hart KC

What happens when the government changes its mind about an existing law but new law has not yet been enacted?

Easy, really. You have to follow the old law, whatever the government may currently think about it. But it gets more complicated when the area of law, like planning, has a wide area of policy-making and policy-following built into it. So now we have old law, and new policy announced but no new law yet to underpin that policy other than in the broadest sense.

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Sharon Shoesmith wins her appeal – Obiter J

27 May 2011 by Guest Contributor

Shoesmith, R (on the application of) v OFSTED & Ors [2011] EWCA Civ 642 (27 May 2011) – Read judgment

In April 2005, Sharon Shoesmith was appointed as Director of Children’s Services at Haringey London Borough Council.  The appointment by a Council of such an officer is a statutory requirement – Children Act 2004 s.18.  “Baby P” – who was the subject of a Child Protection Plan put in place by Haringey Social Services – died on 3rd August 2007 aged 17 months.

Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5.  Their trial, at the Old Bailey, ended on 11th November 2008.  To say the least, the trial was followed by a media hue and cry demanding that heads roll.

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Murder, miscarriage of justice and Scots judicial autonomy

27 May 2011 by Rosalind English

Fraser v Her Majesty’s Advocate [2011] UKSC 24 (25 May 2011)  – Read judgment

The Supreme Court has had to consider (for the second time in a month) the ticklish question of what constitutes a “miscarriage of justice”.

The business is rendered more ticklish because this was a case being handled by the High Court of Justiciary, the court of last resort in all criminal matters in Scotland.

Our previous post questioned whether the finding of a miscarriage of justice entitled the individual, whose conviction is quashed, to compensation for the slur on their innocence. Here the Court scrutinises the actual diagnosis of a miscarriage of justice. They had to do so in this case because their jurisdiction depended on it. This needs some explaining.

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Let’s talk about sex

26 May 2011 by Adam Wagner

In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.

That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?

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