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25 November 2024 by Catherine Churchill
In the News
US President Joe Biden agreed last week to provide Ukraine with anti-personnel land mines as part of their 70th military aid package to Ukraine. The decision represents a significant departure from the Biden-Harris Administration’s 2022 policy which committed to limiting the use of landmines on the grounds that the weapons have a ‘disproportionate impact on civilians, including children, long after fighting has stopped’. Ukrainian president Volodymyr Zelenskyy expressed his gratitude to the US in a video address last Wednesday, stating that the ‘essential’ mines will ‘significantly strengthen troops on the front line’. However, the decision has been met with widespread concern. The International Campaign to Ban Landmines has condemned the decision as ‘unconscionable’, expressing that the ‘human cost of this decision cannot be overstated. Ukraine already faces decades of demining work due to extensive Russian landmine use. Adding new mines to this contamination will only extend the suffering of civilians and complicate post-conflict recovery efforts’.
Uganda opposition leader Kizza Besigye appeared in military court this week after disappearing on November 16th in Kenya’s capital, Nairobi. Last Wednesday, it transpired that he was being held in Ugandan military custody when he appeared before the court charged with national security offences and unlawful possession of firearms. Winnie Byanyima, Besigye’s wife and human rights activist, said in a post on X that Besigye ‘has not owned a gun in the last 20 years’, and, as a civilian, ‘should be tried in a civilian court not a military court’. Human Rights Watch have stated that this is only the ‘latest example of Uganda’s authorities misusing military courts and military-related charges to clamp down on the opposition’. UN Human Rights Chief Volker Turk has released a statement expressing his ‘shock’ at the ‘abduction’ and the ‘deeply concerning practice in Uganda of prosecuting civilians in military courts, in contravention of the country’s obligations under international human rights law’.
In the Courts
On Thursday, the International Criminal Court (ICC) announced its decision to issue warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and Former Defence Minister Yoav Gallant, alongside Mohammed Deif, Hamas military leader whom Israel claim was killed earlier this year. The decision comes after the dismissal of two challenges launched by Israel disputing the Court’s jurisdiction. The warrants against Netanyahu and Gallant are issued after the Chamber found ‘reasonable grounds’ to believe the individuals bear criminal responsibility for alleged ‘crimes against humanity and war crimes’. Netanyahu responded later on Thursday to the news of a warrant being issued against him, claiming that the ICC’s warrant is based on ‘false’ accusations made by ‘biased judges who are motivated by antisemitic sentiments against the one and only Jewish state’, and that ‘no war is more just than the war that Israel has been waging in Gaza’. US President Joe Biden has called the decision ‘outrageous’, stating that ‘whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas’. Downing Street, though declining to comment on the specific case, has indicated that it will fulfil its ‘legal obligations’ as imposed under international law. Home Secretary Yvette Cooper, speaking to Sky News, added that it is ‘not really a question of should; we are required to because we are members of the ICC.’
A Wyoming Judge on Monday struck down the State’s ban on abortion – including its explicit ban on abortion pills – following a legal challenge brought by a group of women and non-profit organisations. Melissa Owens, Teton Country district judge, ruled that the ban violated a 2012 state constitutional amendment which enshrined the right of Wyoming citizens to have control over their healthcare decisions. Owens stated in judgment that ‘abortion procedures constitute essential health care for pregnant women’ and that there is ‘no compelling governmental interest to eliminate abortion procedures based on the State’s position that abortions are gruesome and barbaric’. Wyoming Governor Mark Gordon announced the day after judgment was handed down that he has instructed the Attorney General to prepare an appeal to the Wyoming Supreme Court, whose members were all appointed by anti-abortion Republican governors.
The Equality and Human Rights Commission published its written submissions last week in advance of the Supreme Court hearing in For Women Scotland v Scottish Ministers, in which it has been granted permission to intervene. The case, which is likely to result in a landmark decision on the legal definitions of ‘woman’ and ‘sex’, is due to take place on the 26th and 27th of November. The appeal has been brought by the controversial gender-critical campaign group For Women Scotland and contests the lawfulness of Scottish Government guidance which states that a person with a Gender Recognition Certificate that recognises their gender as female is to be treated as having the sex of woman. The EHRC’s submissions on appeal take the view that the definition of sex in the Equality Act ‘creates significant inconsistencies, which impair the proper functioning of the Equality Act and jeopardise the rights and interests of women and same-sex attracted people. […] As the equality regulator, we deem this to be a wholly unsatisfactory situation, which Parliament should address with urgency’. Amnesty International UK, who are also intervening, have stated that they are doing so because they believe ‘it is vital the Court is assisted by submissions setting out why legal gender recognition is a human rights issue and that trans people should not be expected to live without it’. A case note on the decision being appealed this week can be found here on the blog.
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20 November 2013 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular glass menagerie of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney [note from Adam Wagner – a warm welcome to Celia Rooney, our new rounder upper]
This week, Chris Grayling and the Court of Justice go head to head over the domestic status of the Charter of Fundamental Rights, while the ghost of Winston Churchill comes back to haunt the ‘United States of Europe’ debate. Meanwhile, Theresa May’s plans to deprive terrorist suspects of their British citizenship are under fire, while calls for press accountability are repeated.
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22 January 2012 by Rosalind English
Standard Verlags GmbH v. Austria (no. 3) (no. 34702/07) – read judgment
On the face of it this judgment is no more than a run of the mill case ( in a line running from Bladet Tromso through Fressoz and Roire to Flinkkilä and Others) concerning freedom of speech in one of the Convention signatory states where media controls are a great deal more stringent than they are here. However with the ongoing Leveson inquiry and speculations about its future recommendations occupying many column inches in the UK media it is instructive to see how other countries apply their press restrictions and indeed how Strasbourg approaches any challenge brought against them.
Background
The applicant company, Standard Verlags GmbH, owns the Vienna daily newspaper Der Standard. The case concerned an article it published in April 2006 reporting on enormous speculation losses incurred by a state-backed bank, and the ensuing criminal investigation for embezzlement brought against the bank’s senior management. The article identified a member of the bank’s treasury department as Christian Rauscher, the son of a former regional government member with responsibility for finance. The article reported that in 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known. But it made it clear that the losses had thus been incurred under his responsibility.
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5 September 2019 by Jim Duffy
One intervention that did not quite make it onto this week’s packed Parliamentary highlights reel came from Emily Thornberry MP.
The Shadow Foreign Secretary suggested that deaths caused by a lack of basic medicines following a No-deal Brexit would entitle coroners to reach a finding of ‘neglect’ in future inquests. She added that it was her understanding the government had received legal advice to that effect.
Her remarks follow the leak two weeks ago of government documents prepared as part of ‘Operation Yellowhammer’. These reportedly predicted severe, extended delays to the supply of medicines in the event of a No-deal departure.
Neglect
Depending on the content of the warnings about medicines, Ms Thornberry may be right. An argument that a deceased’s death has been caused or contributed to by neglect is usually levelled against a local police force that fails to provide basic medical attention to a detainee in need, or a hospital that does not act to counter a life-threatening illness in a patient. It is not commonly deployed against central government on the basis of a decision said to have denied basic medical attention to whole sections of the population.
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18 February 2022 by Rosalind English
The Good Law Project and The Runnymede Trust, R (on the application of) v The Prime Minister and Anor [2022] EWHC 298 (Admin) (15 February 2022)
This was an interesting ruling on the matter of standing, something that has fallen rather by the wayside since it formed the subject of much satellite litigation in the 1990s. In essence, the Court ruled that the GLP had no standing to bring this claim. Despite its articles of association, whose purposes include the provision of sound administration and equality, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or benevolent purpose ancillary”. Such a general statement of objects could not confer standing on an organisation:
That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case. [58]
Arguments before the Court
The GLP and the Runnymede Trust brought a challenge to the government’s decision to appoint two individuals to head Covid projects such as the Test and Trace programme (Baroness Harding of Winscombe (Dido Harding) was one of the individuals named). Mike Coupe, Director of Testing, NHS Test & Trace, was the other.
The claimants contended that the government had a practice of appointing people to positions critical to the government’s response to the COVID-19 pandemic without open competition, that only candidates with some relevant personal or political connection to the decision-maker were appointed, and that, even though the positions to be filled were senior and strategically important, the person appointed was unpaid. The Claimants said this gave rise to indirect discrimination on grounds of race and/or disability. They made other complaints about the process used by the Defendants.
The Defendants disputed all these claims on their merits. In addition, they contended (a) that the matters complained of had now been overtaken by events rendering the claims academic, and that for that reason, the claims should not be determined by the court; (b) that the claims had been brought too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also one further matter, which the Court considered in the context of the standing issue, although it was conceptually distinct. That was whether the decisions challenged were amenable to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review.
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25 September 2012 by Rosalind English
Valeri Hariev Belov [2012] EUECJ Case C-394/11 20 September 2012 – read opinion
For the first time the European Court of Justice (CJEU) has been asked to address the issue of indirect discrimination based on ethnic origin and the possible justifications for such discrimination.
The question, put before it as a reference on a preliminary issue from the Bulgarian Commission for Protection against Discrimination (the “KZD”), is this:
Is it discriminatory if, in districts which are inhabited predominantly by a people belonging to a certain ethnic minority, electricity meters are suspended much higher than elsewhere?
The Court has thus been given an opportunity to refine its case-law on the ‘anti-discrimination directives’ – in the present case the Directive 2000/43/EC (the “race directive”).
Background facts
What led to this dispute was the practice in two districts of the Bulgarian city of Montana, of attaching electricity meters to electricity poles at a height of 7 m, whilst elsewhere electricity meters are installed at a maximum height of 1.70 m, such that they are accessible for consumers. The districts in question are inhabited primarily by people belonging to the Roma community, and the question therefore arises whether this practice constitutes discrimination based on ethnic origin.
As the electricity authority’s written observations to the court explained, the measure was taken because of the increasing incidence of unpaid bills in the two urban districts and the frequent offences committed by consumers which impair or threaten the safety, quality and continuous and secure operation of the electrical installations. The AG succinctly describes of the problem, and the solution to it:
Manipulation and unauthorised electricity extraction are undoubtedly made more difficult if electricity meters and distribution boxes are placed at a height of 7 m, which is normally inaccessible for consumers
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14 March 2022 by Shaheen Rahman
Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party) [2022] EWHC 527
A year after the kidnap, rape and murder of Sarah Everard by serving Metropolitan Police officer Wayne Couzens, the Divisional Court has given its judgment on the MPS response to the proposed vigil for Ms Everard organised by #ReclaimTheseStreets on Clapham Common, near where she was last seen alive.
The aim of the vigil was to highlight risks to women’s safety and to campaign for a change in attitudes and responses to violence against women. However, it was at a time when Regulations imposed during the Covid-19 pandemic prohibited a gathering of more than 30 persons in a public outdoor place in a Tier 4 area such as London.
MPS would not sanction the plan for the vigil and it was cancelled (as discussed here). The Claimants alleged that this was because the Met had unlawfully thwarted the plan. The Court agreed.
The judgment is a comprehensive victory for the Claimants, hailed by them as a “victory for women” and an “absolute vindication”. It is also a landmark decision in the context of debate as to the impact of the Covid regulations on the fundamental rights and freedoms enshrined in primary legislation pursuant to the HRA. It contains a granular analysis of the requirements of the proportionality assessment to be undertaken in such cases. It has particular resonance given controversial changes to the way police are able to control protests currently being debated in parliament as part of the Police, Crime, Sentencing and Courts Bill.
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12 November 2018 by Guest Contributor
As the international media has become full of whispers as to just where Asia Bibi might be offered asylum, discrimination has once again been to the forefront of legal bulletins at home. Most notably, the story of Rehana Popal’s treatment at the hands of solicitors who requested that she return her papers after their client demanded a ‘white, male barrister’, has made waves in the news. Whilst this runs entirely against the solicitors’ code of conduct and, indeed, the Equality Act 2010, Ms Popal, the English Bar’s only Afghan-born female barrister, has stated that this has not been the first occasion upon which she has been subjected to such discriminatory treatment.
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16 May 2013 by David Hart KC
N.K.M v. Hungary, ECtHR, 14 May 2013, read judgment
Those of a certain age will remember when top tax rates in the UK were 98%. This was the marginal rate of tax in this successful claim that such taxation offended Article 1 of the 1st Protocol (A1P1) – the peaceful enjoyment of possessions. But the very wealthy seeking to safeguard their bankers bonuses may not obtain too much comfort from the Strasbourg ruling, as the facts were fairly extraordinary.
The applicant had been a Hungarian civil servant for 30 years until her dismissal (with many others) in July 2011. Long-standing rules gave her 8 months severance pay. The 98% tax rate was introduced in 2010; it was then successfully challenged in the Hungarian Constitutional Court. On the day of the Court’s adverse judgment, the tax was re-enacted, but this time the 98% rate was applied to pay exceeding 3.5m forints – c. £10,000 – and, further, only where the earnings came out of specified categories of public sector employees.
A fresh challenge in the Constitutional Court annulled the retrospective effect of this law, but could not as a matter of jurisdiction review the substantive aspects of the tax. So the applicant went to Strasbourg to challenge the tax when deducted from her pay.
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30 June 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular LS Lowry matchstick panorama of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
With the continuing progress of the Marriage (Same Sex Couples) Bill through Parliament, focus was turned this week to the same issue in the USA. Meanwhile, it was extra-judicial scrutiny being meted upon Chris Grayling’s money-making proposals, and the Sun was censured by the PCC over an EU-ECtHR mix-up.
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13 July 2014 by David Hart KC
Breyer Group plc and others v Department of Energy and Climate Change [2014] EWHC 2257 (QB) – Coulson J read judgment
This is an important judgment on governmental liability for a rather shabby retrospective change of the rules about subsidies for photovoltaic schemes. The Court of Appeal had decided in 2012 that the changes were unlawful: see judgment and my post here. The question in Breyer was whether businesses could obtain damages under A1P1 arising out of the Secretary of State’s decision. Though the judgment proceeds on a number of assumed facts, some critical findings of law were in favour of the businesses.
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10 October 2016 by Guest Contributor
Understanding Standing: Post 3 of 3 of Article 263(4) TFEU
This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.
Part I) Effective judicial remedies.
Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea that the effectiveness of EU law could impose certain obligations at the domestic level in order to ensure that effectiveness, Case C-14/83 Von Colson and more famously Case C-410/92 Johnson. The principle can now can be found enshrined in Art 47 of the Charter, as follows:
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. (…)
This Charter has equal status to the other two Treaties constituting the EU, the TEU and TFEU (see TEU, Art 6(1)) Thus, as has been stressed on many an occasion, the very applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In other words, effective judicial protection is a fundamental postulate of EU law – where there is EU law there must be effective judicial protection.
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18 March 2019 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
In the News:
The Independent Inquiry into Child Sexual Abuse (IICSA) heard evidence about Sir Cyril Smith, the former MP for Rochdale. It has been alleged that Sir Cyril Smith abused boys in the 1960s at a school and hotel. The allegations were investigated by the police, but no further action taken.
Lord Steel, the former Liberal leader, gave evidence to the Inquiry. He explained that an article in Private Eye caused him to approach Cyril Smith about the allegations. Lord Steel said that, following this conversation, he “assumed” the allegations were true.
Lord Steel explained he had decided not to act because the accusations were “nothing to do with me”. He “saw no reason to go back to something that happened during his time in Rochdale” and the events happened “before he was even a member of the Liberal Party or an MP”.
Lord Steel’s comments sparked anger and he has been suspended from his party. He has since stated that the matter was properly an issue for the police and the council, and that he was not in a position to re-open the investigation.
In Other News….
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5 October 2012 by Alasdair Henderson
NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment
How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.
Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).
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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.
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