Search Results for: education

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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France’s ban on religious clothing in schools did not prevent removal of asylum seeker there under Dublin Regulation

1 July 2014 by Rosalind English

 R (On the application of Mofazzar Baradarn and Malik Baradarn0 v Secretary of State for the Home Department and the Sikh Council Hampshire 24 June 2014 [2014] EWCA Civ 854 – read judgment

David Manknell of 1 Crown Office Row represented the Home Office in these proceedings. He has had nothing to do with the writing of this post.

France is a country which observes its Convention obligations therefore it is not in breach of Article 3 or any other of the Convention’s provisions to return an asylum seeker thence under the Dublin Regulation, since that system provides that once a Member State has “taken charge” of an application for asylum (as France has in this case) it has exclusive responsibility for processing and determining the claim for asylum. The prohibition on religious clothing in public schools in France did not disclose a threat to the second appellant’s Convention rights.

Background facts

The appellants were Iranian nationals (father and daughter) who challenged the Secretary of State’s decision on 5 December 2011 to refuse their asylum claims on safe third country grounds and to remove them to France. France had accepted responsibility for their asylum claims pursuant to the Dublin II Regulation. Before Hickinbottom J, they objected to their return to France because under French law they were banned from the wearing of the burka and the niqab in public. They alleged that this would breach their rights under articles 3, 8, 9, 11 and 14 of the European Convention on Human Rights. Their claims were dismissed by the judge in their entirety. Maurice Kay LJ gave them permission to appeal in relation only to articles 8, 9 and 14 by reference only to the French Law 2004-228 (“the 2004 law”) and in relation to section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”). The 2004 law had not featured in argument before the judge. It was, however, common ground that the appeal was concerned with the 2004 law and not the 2010 law. The 2004 Law provides that “in public elementary schools, middle schools and secondary schools, the wearing of symbols or clothing by which the students conspicuously indicate their religious belief is prohibited”.
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Feature | A human right to money: will it ever happen?

8 June 2010 by Rosalind English

The Weekly Round-up: Free Speech: Chilling Effects or Phantom Threats?

22 February 2021 by Hugo Murphy

A number of legal developments put free speech under the spotlight this week.

First, media commentators disputed the significance of the Duchess of Sussex’s successful privacy claim against Associated Newspaper Limited, covered in last week’s round-up. A leader in The Times issued the grave warning that ‘Mr Justice Warby’s judgment creates a precedent that will have a chilling effect on the media,’ not least ‘given that what was at stake…were issues that affect society as whole’. Some media lawyers took a dim view of such alarm, suggesting there was little to be surprised at in Warby J’s carefully reasoned conclusion that no legitimate public interest was to be found in publishing the intimate contents of a daughter’s letter to her father. 

Then came Education Secretary Gavin Williamson’s announcement of a proposed free speech law targeting universities, designed to reverse ‘the chilling effect on campuses of unacceptable silencing and censoring’. Its reception was mixed to say the least. The scheme would impose a statutory free speech duty on universities and student unions, enabling ‘no-platformed’ academics, students and visiting speakers to sue for compensation. Potential infringements would be investigated by a mandated ‘free speech champion’, empowered to recommend various forms of redress. While many academics welcomed the basic principles behind the proposal, others complained that it fomented “phantom fears” of a “cancel culture” crisis. 

Hacking, torture and legal aid – The Human Rights Roundup

18 July 2011 by Graeme Hall

In the week that saw the UK Human Rights Blog reach half a million hits, we welcome you back to 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. You can also find our table of human rights cases here.

by Graeme Hall

In the news:

Phone-hacking

With the resignation of the Metropolitan Police Commissioner, Sir Paul Stephenson, and the arrest of the former Chief Executive of News International, Rebekah Brooks, the phone-hacking scandal revelations continue to snowball. Adam Wagner considers what role human rights may have played in the News of the World’s demise, here.

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A Moral Assessment of the European Court of Human Rights

9 January 2013 by Guest Contributor

This is a short version of an article on the subject to be published by John Edwards, Professor Emeritus of Human Rights at London University 

There have been three major conferences over the past two years (at Interlaken, Izmir, and Brighton) to discuss the functioning of the European Court of Human Rights and possibilities for its development and reform. Each provided an opportunity to scrutinise such important components of the Court’s work as the subsidiarity principle, the (quite separate) principle of the margin of appreciation, the prioritisation of Convention articles, admissibility criteria, the idea of “European consensus”, “just satisfaction”, and “significant disadvantage” as well as  broader topics such as the future role of the Court and whether a court of individual petition with case law as its only corpus of wisdom is the best way of promoting and protecting human rights in Europe. On each occasion debate was hijacked by the singular topic of reducing the backlog of cases. Wherever one of these components had a bearing on the Court’s overload, discussion was virtually confined to how it could be amended to cut the backlog and bring applications and judgements into balance. 
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Student fees, access to justice and Leveson Part II – The Human Rights Roundup

26 February 2012 by Sam Murrant

Welcome back to the human rights roundup, your weekly buffet 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

Legal aid reforms

The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.

UKHRB news

In exciting news for this blog, UKHRB editor Adam Wagner has been appointed to the Attorney-General’s C panel of Counsel. See here for more detail on what this involves.

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UK judges have breathed new life into Human Rights Convention, says former court president – Sanchita Hosali

4 September 2013 by Guest Contributor

Yesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.

At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” –  politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.

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The Weekly Round Up: Contested free speech at Sussex, Columbia and Cambridge, increased UK police powers, extradition to Romania blocked

31 March 2025 by Benjamin Savill

In the news

The University of Sussex has received a record fine of £585,000 from the UK Office for Students (OfS) for what it has called a “fail[ure] to uphold freedom of speech and academic freedom”. The fine follows an investigation into the circumstances behind the resignation of the philosopher Kathleen Stock, who left the University in 2019 after becoming the object of student protests for her “gender critical views”. The OfS’s investigation focussed primarily on the University’s ‘Trans and Non Binary Equality Policy Statement’, which it claims created a “chilling effect”, giving rise to “the potential for staff and students to self-censor and not speak about or express certain lawful views.” The OfS states that the University may not have complied with section 43 of the Education (No. 2) Act 1986 (duty relating to freedom of speech); Article 10 of the European Convention of Human Rights (ECHR) (the right to freedom of expression); Section 19 of the Equality Act 2010 (indirect discrimination); and the Public Sector Equality Duty.

The Round-up: Tax on Justice

20 June 2016 by Charlotte Bellamy

The Ministry of Justice

In the news

The Justice Select Committee has found that steep rises in court fees are damaging access to justice. The report examines the recent and proposed changes to fees for court users in the civil and family courts and tribunals, including those introduced for employment tribunals and the proposed increase to asylum and immigration fees. The Committee, chaired by former barrister Bob Neill MP, raises serious concerns about the quality of the Ministry of Justice’s research into the impact of the fees, sharing the view expressed by the senior judiciary who gave evidence that it does not provide a sufficient basis to justify the proposals. Lord Dyson, Master of the Rolls, described the research as “lamentable”.

The Coalition Government over the course of the 2010-15 Parliament pursued policies aimed at decreasing the net cost to the public purse of Her Majesty’s Courts and Tribunals Service, by introducing and increasing various fees for court users. This included introducing fees for employment tribunals, the now extinct criminal courts charge, and a range of fees for civil proceedings, including “enhanced fees”, which are set at a level greater that the costs of the proceedings themselves. The pursuit and implementation of fees has been continued in the current Parliament.
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Dolan’s latest lockdown defeat

3 December 2020 by Rosalind English

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.

A blueprint for a simpler, fairer justice system

11 November 2011 by Adam Wagner

The Civil Justice Council (CJC) has just released a major new report: Access to Justice for Litigants in Person (or self-represented litigants). The report attacks head-on the prospect of thousands more people having to represent themselves in court once civl legal aid is mostly taken away.

The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.

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The Coronavirus lockdown does not breach human rights (Part One) — Leo Davidson

30 April 2020 by Guest Contributor

Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.

In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.

In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.

Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.

Introduction

With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.

These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough.  As a matter of human rights law, however, they are lawful.  The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.

Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful.  The analysis is wrong, primarily because:

1. It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
2. In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
3. The margin is particularly wide given the complex scientific evidence underlying the decision.

I address these three point in turn, below.

The Weekly Round-up: Human Rights Act reform, citizenship for Windrush claimants and European parenting rights

20 December 2021 by William Craig Cohen

On Tuesday, the Ministry of Justice published its full consultation (the ‘Consultation’) on Human Rights Act (the ‘Act’) reform. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights. The 123-page Consultation follows the Independent Human Rights Act Review (‘IHRAR’), which reported to the government in late October, and was published on the government website on the same day as the Consultation.

The Consultation runs through the government’s now familiar issues with the Act, putting significant weight on cherry picked human rights cases which it is eager to summarise in its own words. For instance, R (Ellis) v Chief Constable of the Essex Police 7 [2003] EWHC 1321 (Admin), [2003] 2 FLR 566 is cited in the Consultation as an example of the application of the Act going ‘too far’. The Consultation presents the issue in the case, of Essex police publicising photographs of convicted offenders in train stations, as one that should clearly be beyond the remit of the Act. It makes no mention of the children and relatives of the offenders whose interests were balanced with the interests of the public in naming and shaming offenders in the hopes of deterring further crime (in the end, the scheme was permitted to continue).

Redress for ‘historical’ child abuse in care: what can Scotland learn from Ireland? — Dr Maeve O’Rourke

21 October 2020 by Guest Contributor

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill is currently undergoing parliamentary scrutiny.

How survivors experienced Ireland’s institutional abuse ‘redress’ schemes (the Residential Institutions Redress Board (RIRB) and the Magdalen Restorative Justice Ex-Gratia Scheme) over the past two decades can tell us a great deal about the elements of good practice in the Scottish Bill and the areas requiring amendment.

The Scottish Bill improves greatly on some problems that have beset Irish redress schemes by proposing a non-adversarial approach, provision of legal and other assistance throughout a survivor’s engagement with the scheme, freedom of expression for survivors, and a prohibition on the review body reducing the payment proposed at first instance.

However, the Bill’s shortcomings include the waiver requirement, the five-year time limit for applications, the anticipated obligation on survivors to provide documentary evidence ‘in all but exceptional cases’, and the exclusion of corporal punishment from the scheme’s scope. My recent correspondence to the Scottish Parliament’s Education and Skills Committee discusses all of these issues.

Here, I focus on the waiver. This requires that a survivor must trade their right to sue the State and any institution that has made ‘fair and meaningful contribution’ to the scheme in exchange for a payment of up to £80,000.

Scotland has the opportunity to use this redress scheme to support survivors who wish to pursue litigation against the State and/or other entities, by contributing to these individuals’ psychological and financial security in the short term. Instead of the current waiver proposal, the Bill could direct the courts to reduce any future damages award by the amount already paid by the relevant Defendant under the scheme. This approach would recognise the absolute and inalienable human right of survivors of torture or other cruel, inhuman or degrading treatment to accountability for such abuse, and to compensation commensurate with the gravity of the harm suffered. Such recognition would strengthen current and future protections against torture and ill-treatment while redressing past failings.