New head of Family Court says social workers perceived as “arrogant and enthusiastic removers of children”

13 April 2010 by

Sir Nicholas Wall, the new head of the Family Division, is being sworn in today. The Times reports this morning on comments he made in a recent judgment in the case of EH v London Borough of Greenwich & Ors [2010] EWCA Civ 344.

He said of social workers:

What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception. (paragraph 109)

A profile of Sir Nicholas in The Times suggests that he arrives at his new post with a reputation as a forthright critic of social services, local council, social workers and politicians. Indeed, it has been suggested that the Justice Minister Jack Straw may have been trying to block the appointment of Sir Nicholas for that very reason.

We posted earlier this week on the issues regarding child protection and the duty of care of local authorities. The courts are often finding themselves having to balance the competing rights of children, who must be protected against abuse, and parents, who are sometimes themselves the victims of overzealous prosecutions by local authorities. It would appear that the pressure on public authorities will only increase once the new Family Division head is in post.

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Is the historic right to trial by jury slipping away?

13 April 2010 by

The conviction of the “Heathrow heist four” at the Old Bailey has raised serious concerns that the historic right to trial by jury may be slipping away.

For the first time in 350 years, the four men were convicted in the Crown Court by way of a trial without a jury. On March 31st each received long prison sentences for their part in the robbery.

Henry Porter, writing in The Guardian, has severely criticised the reforms which allowed the trial to proceed with no jury. He says:

A profound change has occurred in Britain where it is now possible for counsels and a judge to decide the fate of defendants without the involvement of 12 ordinary citizens – the fundamental guarantee against arbitrary state punishment represented so well by the use of the star chamber under King Charles I.

The right to trial by jury has been steadily eroded in recent years. Civil courts now operate almost entirely without juries, as do some lower-level criminal courts such as Magistrates’ courts, which are only able to impose custodial sentences up to a maximum length of one year.

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Major new Equality Act becomes law despite opposition from Pope

12 April 2010 by

The Equality Act 2010 received royal assent on 8 April 2010. The Act aims to consolidate what until now has been a messy jigsaw of 116 pieces of legislation, and further harmonise UK law with the four key EU Equal Treatment Directives.

The Bill passed despite the unusual opposition from the Pope, who complained in February that it would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. We previously posted on this topic in relation to the Catholic Care case, which resulted in a victory for a catholic adoption agency.

The Equality and Human Rights Commission, which has welcomed the passing of the Bill, points out some of the key features:

  • Making the law easier to understand and implement by simplifying 116 pieces of equality legislation into a single Act for individuals, public authorities and private organisations.
  • Giving people the right not to be treated less favourably by public authorities because of their age, religion or belief, sexual orientation, or transgender status; as well as their disability, gender, or race which were already covered.
  • Extending anti-age discrimination rules to include goods, facilities and services, thereby stopping people being unfairly refused insurance or medical treatments based on what age they are, for example.

The key sections of the Act will begin to come into force in October 2010 and will continue to do so until 2012.

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New anti-bribery measures become law

12 April 2010 by

The Bribery Bill received Royal Assent on 8 April 2010, heralding a new approach to tackling corruption and seeking to make the UK compliant with the OECD Anti-Bribery Convention.

Anti-corruption body Transparency International welcomed the new law, describing it as historic, long overdue and sending out a strong message that the UK will not tolerate bribery. It is hoped that the new legislation will encourage ethical practices in the business world.

The connection between corrupt business practices and breaches of human rights has long been recognised. In their comment on the draft Bribery Bill, The Corner House said:

“most large-scale bribery is committed for the benefit and on behalf of businesses and that bribery often infringes upon a wide range of human rights, both directly and indirectly. As such, a commercial organisation’s negligent failure to prevent bribery should remain a criminal offence.”

Meanwhile, the Campaign Against Arms Trade and The Corner House are not pursuing an appeal for permission for judicial review of the Serious Fraud Office’s decision to enter a plea bargain settlement with BAE Systems and to drop “conspiracy to corrupt” charges against a BAE former agent. The organisations say that the action has been withdrawn with regret as a recent admission by the SFO makes it difficult to sustain any legal challenge.

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Prisoners still disenfranchised

12 April 2010 by

Prisoners will be unable to vote in the general election despite the European Court of Human Rights ruling almost five years ago that the blanket ban was unlawful.

The House of Lords discussed the issue in the small hours of 7 April 2010 when Lord Ramsbotham, former Chief Inspector of Prisons, tabled an amendment to the Constitutional Reform and Governance Bill which would have removed the ban.

Lord Ramsbotham lamented that the Government was “frightened of offending reactionary public opinion by appearing not to be tough on criminals” and “determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.”

The Government insists that it is still considering the responses to its second stage consultation, despite it closing over six months ago.

The Parliamentary Joint Committee on Human Rights has also expressed serious concern, noting that the Government risks not only political embarrassment at the Council of Europe, but will be in breach of its international obligation to secure the full enjoyment of Convention rights for everyone within its jurisdiction.

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High Court defends freedom of expression for news websites

12 April 2010 by

SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010

Read judgment

A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.

Summary

The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.

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Is cutting off a person’s internet a breach of their human rights?

9 April 2010 by

The Law Society of Scotland have sounded the alarm in relation to new Government powers to block an individual’s internet access, and argue that this is likely to amount to a breach of their Human Rights.

The Digital Economy Bill, which has now passed through Parliament and has royal assent, has attracted wide attention in the past few days for a number of reasons. Many have been concerned at the apparent lack of debate in relation to the wide-ranging Bill.

However, a pressing concern amongst internet users has been the proposed new powers for the Government to block an individual’s internet access as a punishment for internet piracy.

The Law Society of Scotland consider that blocking an individual’s internet access would be breach their human rights. They are concerned in particular with the lack of a requirement for a court order before access is cut off, which would amount to a breach of Article 6 of the European Convention. Jim McLean, convener of the Society’s Intellectual Property Committee says:

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Bill of Rights to be key election issue

9 April 2010 by

The Bill of Rights will be one of the major issues in the May 6th Election, even if it may not capture as much public attention as crime or the NHS. Whichever party (or parties) takes control after May 6th, their attitude towards the Human Rights Act 1998 (HRA) will have significant and long lasting consequences for the UK.

Joshua Rozenberg blogs today on his verdict of Labour’s record from 1997-2010. He says that the HRA is “what legal historians will remember as the defining reform of Labour 1997-2010 (if this year does, indeed, mark the end of an era). Even if the Human Rights Act 1998 is modified by an incoming government, it will not be repealed. There would be little point in doing so; no government would withdraw from the European Convention on Human Rights, jeopardising the UK’s membership of the Council of Europe and even of the EU.”

He continues:

I am closer to Dominic Grieve than David Cameron on this one. I don’t regard Labour’s “incorporation” of the convention into domestic law as a disaster. I saw it as a political imperative – although it was one that would never have happened if Lord Irvine of Lairg, who became Lord Chancellor in 1997 – had not hit the ground running. It is he, I believe, who devised the subtle “declaration of incompatibility” on which the entire Act rests, preserving parliamentary sovereignty while giving judges strong powers to “read down” legislation in a way that complies with human rights standards.

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Feature | Are the courts taking child protection too far in abuse claims?

8 April 2010 by

Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.

It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).

The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.

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Beginning of the end for the “Super Injunction”?

8 April 2010 by

A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.

Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).

We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.

The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.

According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.

Read more:

  • Mr Justice Tugendhat decision in the John Terry case
  • The Judicial Communication Office announcement (including the names of the committee members)
  • Commentary from Liberty Central in The Guardian

Introduction by Philip Havers QC

8 April 2010 by

It is now nearly 10 years since the Human Rights Act 1998 came into force in October 2000. Its effect on our domestic law has been profound and far reaching and a knowledge and understanding of human rights law is now an essential part of the legal knowledge of all practising lawyers.

1 Crown Office Row’s team of public law specialists have played a prominent part in many of the important human rights cases which have been decided under the Act. They have also been producing the unique 1 Crown Office Row Human Rights Update Service for almost a decade.

As a natural extension of this service, we are now introducing the 1 Crown Office Row UK Human Rights Blog which we believe will provide a valuable and engaging supplement to our update service. So far as we know, it is the first UK Human Rights blog. We hope that you will enjoy using it.

NHS Nurse banned from wearing crucifix at work loses discrimination claim

7 April 2010 by

Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.

The Employment Tribunal judgment is not available at present, but The Times reports:

John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.

According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.

The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways [2009] EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.

The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.

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Chairman of Baha Mousa Public Inquiry will not force the MoD to disclose Attorney General human rights advice

6 April 2010 by

Lord Goldsmith

Sir William Gage, the Chairman of the Baha Mousa Public Inquiry, has refused an application by participants in the Inquiry to compel the Ministry of Defence (MoD) to disclose advice produced by the former Attorney General, Lord Goldsmith.

The MoD claimed legal professional privilege in respect of the Attorney-General’s Advice of 2003 on the application of the European Convention of Human Rights (ECHR) to the British Army’s operations in Iraq during the Iraq war.

The Inquiry, which has been ongoing since July 2009, aims to investigate and report on the circumstances surrounding the death of Baha Mousa by the British Army and the treatment of those detained with him, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003.

Read more:

  • You can read the Chairman’s full Ruling here.
  • Read coverage in The Times

Outcome of Carson v The UK is £60m pensions bill for Australians

6 April 2010 by

We posted last week on Carson and Others v The United Kingdom (read judgment), in which the European Court of Human Rights rejected a claim that UK pensioners living abroad should have their pensions index-linked (i.e., that they be raised in line with inflation).

It turns out that it is not just the UK, or indeed Europe, being affected by the long reach of the ECtHR. Alison Steed in The Daily Telegraph reports that the Australian Government are footing the bill for 170,000 ex-pat British pensioners living there. They have said in response to the judgment:

“The Australian government believes this policy is discriminatory. We have been actively lobbying the UK government on this issue… This policy continues to place an increasing burden on all Australian taxpayers, as the Australian government picks up the tab for around 170,000 UK pensioners who also receive means-tested Australian pensions – estimated at about A$100 million (£60 million) per year in additional social security payments.”

Australia ended its social security agreement with the UK in 2001 in light of this issue, which affects around 500,000 ex-pat UK pensioners living worldwide.

Read more:

  • 28 March 2010 post
  • The ECtHR judgment
  • Our case summary of Carson; Reynolds v Secretary of State for Work and Pensions (May 2005 – House of Lords, 2003 – Court of Appeal)
  • Media coverage of the Carson judgment in The Guardian and on the BBC website

Scottish and Northern Irish Human Rights Commissions express joint concerns on Bill of Rights

5 April 2010 by

The Scottish and Northern Irish Human Rights Commissions have issued a joint statement responding to the Conservative Party’s plans to repeal the Human Rights Act and introduce a British Bill of Rights.

Professor Alan Miller, Chair of the Scottish Human Rights Commission (SHRC), is quoted on their website. Interestingly, he makes the link between the HRA and devolution for Scotland: “The Human Rights Act in combination with the Scotland Act is an important pillar of devolution for Scotland. Rather than needing to be repealed it needs to be progressively built upon in Scotland.” Justice, a Human Rights organisation, made the same point on devolution in a recent report.

Professor Monica McWilliams, Chief Commissioner of the Northern Ireland Human Rights Commission said: “Nowhere in the world has the repeal of existing human rights protections been a starting point for discussing a proposed Bill of Rights.”

Read more:

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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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