Search Results for: prisoner voting/page/49/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
30 October 2016 by Rosalind English
McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment
A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.
See our previous post on Article 50 and a summary of the arguments in the English proceedings.
This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.
At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute. While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.
However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out.
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17 November 2016 by Dominic Ruck Keene
After the lynch mob of outrage stirred up by the recent Divisional Court ruling on Article 50, it is a brave judge indeed who would say anything in public about the question of whether and how Parliament (i.e. the legislature) needs to approve the notification of the European Council under Article 50 of the UK’s intention to leave the EU.
Baroness Hale was therefore perhaps pushing the envelope of bold courage to make a speech in Malaysia on 7 November and refer to that precise issue before the Supreme Court have heard the case.
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22 April 2013 by Rosalind English
International Stem Cell Corporation v Comptroller General of Patents 17 April 2013 [2013] EWHC 807 (Ch) – read judgment
The EU bans the patenting of human embryos for commercial purposes. This ban is implemented in national law via the 1977 Patents Act. But what precisely is a “human embryo” for the purposes of the Biotech Directive? Or, put another way, must the process involving embryonic stem cells be capable of developing into a human being, before the ban can bite?
Stem cells – not just the embryonic variety – are vital to current medical research. This is because they have the capacity to differentiate into almost any type of adult cell, thus opening the door to a wide variety of new therapies and other medical applications. In theory, stem cells can be grown in the lab and developed into healthy adult cells to correct cardiovascular disorders , diabetes and a range of degenerative brain diseases and spinal cord injuries. One of the first triumphs of stem cell therapy is the ability of retinal pigment epithelium cells, cultured from embryonic stem cells (ESCs), to reverse the effects of age related macular degeneration. Other potential applications include the treatment of burns, strokes, eye disease, spinal cord injuries and certain forms of cancer.
But the concept of ESCs is fraught with emotion and controversy and scientists have worked, with varying degrees of success, at finding stem cells elsewhere, either in adult tissue, or by creating stem cells from non-viable embryos.
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23 October 2012 by Rosalind English
Chabauty v France 4 October 2012 – read judgment
I have posted previously on cases involving the ethical objection of landowners to being forced to allow hunting over their property.
These objections have generally found favour with the Strasbourg Court in the balancing of private and public interests under the right to property. Mr Chabauty puts the issue into another perspective. He also complained that he was unable to have his land removed from the control of an approved municipal hunters’ association. The difference was – and this proved to be critical to the outcome of the case – Mr Chabauty is not himself against hunting on ethical grounds. Since no conscience was underlying his Convention complaint, the Court found it not to be disproportionate for the French state to require small landowners to pool their hunting grounds. As such, there had been no violation of Article 1 Protocol 1 or Article 14.
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4 July 2012 by Rosalind English
Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment
The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions, the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.
Background
In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:
“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…”
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27 April 2016 by Guest Contributor
Aranyosi and Căldăraru [C-404/15 and C-659/15 PPU].
On 5 April 2016, the Court of Justice of the European Union (CJEU) ruled that the execution of a European Arrest Warrant (‘EAW’) must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention for the person concerned in the requesting state. If the existence of that risk cannot be discounted within a reasonable period, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be deferred or brought to an end.
The cases concerned two totally unrelated and separate extradition requests: a Hungarian accusation warrant seeking the person for trial, the other a Romanian conviction warrant so the person sought could serve a prison sentence. The requested state in both cases was Germany.
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10 October 2018 by Rosalind English
Lloyd v Google LLC [2018] EWHC 2599 (QB) 8 October 2018 – read judgment
This is a novel form of action, but everything was new once (Warby J para 100)
Already today we are becoming tiny chips inside a giant data-processing system that nobody really understands. (Yuval Noah Harari, 21 Lessons for the 21st Century, p. 36)
Do people want privacy? Because they seem to put everything on the internet. (Elon Musk, interview on Joe Rogan podcast #1169 at 1.49)
Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary application for a representative claim last week.
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7 August 2018 by Matt Donmall
Kimathi & Ors v Foreign and Commonwealth Office [2018] EWHC 1305 (QB) – read judgment.
Stewart J has recently dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s, in Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB). Jo Moore discusses this in her blog post of 6 August 2018.
Earlier this year however he considered, as a preliminary matter, whether fear, caused either by the tort of negligence or trespass, amounts to personal injury so that the Court has the discretionary power to exclude the 3-year limitation period which arises under section 11 of the 1980 Act. Stewart J concluded that “despite the comprehensive and innovative submissions of the Claimants” (para 37), which included arguments on human rights grounds, fear did not amount to a personal injury.
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1 November 2024 by Guest Contributor
In this guest post, Rajiv Shah argues that the provision of assisted suicide in the England and Wales via the NHS would constitute a substantive breach of the negative obligation imposed on the State under Article 2 of the ECHR.
Introduction
Article 2 of the ECHR protects the right to life. That article contains two distinct substantive obligations: “the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions.” (Boso v Italy, at [1])
That first obligation is a positive one and requires States to take steps to protect life from third parties and even from individuals themselves. The precise content of that obligation is necessarily nebulous and the Court affords States a margin of appreciation in deciding what that obligation requires, and how it is to be fulfilled. So, in two recent Chamber decisions – Mortier v Belgium and Karsai v Hungary – the Strasbourg Court held that this positive obligation does not require States to forbid assisted suicide and euthanasia, but that if it does want to allow it, it must create legal safeguards to ensure that the decision of individuals to end their own life/or be killed by third parties is freely taken.
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20 August 2013 by Adam Wagner
Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.
But we know , somewhere in the back of our minds, that we are being fooled.
As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.
That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.
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11 August 2025 by Rosalind English
David Wolfson KC, Lord Wolfson of Tredegar, Shadow Attorney General, and Michael Ellis KC, Attorney General from 2021 – 2022, have written to Labour’s Attorney General Richard Hermer KC regarding the government’s decision to recognise Palestine at the UN General Assembly meeting in September. We highlight this here because Lord Wolfson has recently given an interview on Law Pod UK setting out some of the differences between him and Richard Hermer on what they deem to be the proper boundaries of international law.
They commence their letter with the following statement:
“The recognition of a foreign state is a prerogative act, exercised by the Government. The long-standing position of the UK Government has been that the UK will recognise a state if four criteria are met, often referred to as the Montevideo criteria: ” it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are able of themselves to exercise effective control of that territory, and independence in their external relations”.
In their view, the position taken by successive UK governments until 2025 was that the Palestinian Authority has been both factually and legally unable to exercise a range of governmental functions in the West Bank,
The PA, they point out, has also, “of course, lost control of Gaza to Hamas”.
They therefore pose a number of questions, as to whether the government is applying a different basis of statehood and recognition, and on what basis.
“If the new policy is that protracted frustration of self-determination justifies recognition of statehood regardless of facts on the ground, why is the UK refusing, for example, to recognise Western Sahara as a state?”
They urge the Attorney General to explain how, as a matter of international law, steps taken by Israel can themselves lead to the non-recognition of Palestine. In this case it would seem to be that by declaring a ceasefire, Israel could avoid the “punishment” of Palestine being recognised as a state. This, in the authors’ view, is an incoherent interpretation of international law – “the Government, so vocal when it comes to public pronouncements of general legal principle, appears to lose its voice.”
They conclude their letter with the following paragraph:
“The position of the UK government in recognising Palestine while hostages remain in dungeons in Gaza is shameful. That is a matter for your private conscience. But we believe that the Government’s policy on this issue is also a significant change from the UK’s policy as long stated and understood. That is something which you ought to explain, in public, to Parliament.”
Whatever your position on the conflict, it is worth reading the letter in full, to understand the UK’s policy on statehood recognition as set out by a written answer in the House of Commons in 1986, and in several subsequent communications.
The response to the points raised in this communication will no doubt add to the warp and weft of international law and its varying interpretations in Westminster. There can be no doubt that policy on this issue is governed not by law, but by politics.
A debate in the House of Lords on this issue would be of considerable utility to all lawyers interested in this area.
The UK Human Rights Blog is now available on Substack – see our profile and subscribe here.
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3 December 2019 by Charlotte Gilmartin
R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56
In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.
The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.
The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.
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14 April 2020 by Alice Kuzmenko
The Divisional Court has recently handed down a novel decision in R (FNM) v DPP, considering the right of complainants to a fair opportunity to make representations to the Director for Public Prosecutions (“DPP”), and for those representations to be considered, when conducting a review under the Victims’ Right to Review Scheme (“the VRR Scheme”).
The Court held that in circumstances where the DPP had not waited to give the complaint an opportunity to make representations as to whether there should be a criminal prosecution, the decision not to prosecute was materially flawed.
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16 March 2014 by David Hart KC
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment
The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.
At that point, the Attorney-General intervened and signed a certificate saying “no”.
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30 January 2011 by Adam Wagner
In an entertaining post which also raises the serious issue of journalistic responsibility, the Nearly Legal blog has put a Daily Mail “family law expert” on the naughty step in relation an article on a recent Supreme Court decision on the meaning of domestic violence in housing cases.
According to the respected housing law blog, the Mail article, entitled Shout at your spouse and risk losing your home: It’s just the same as domestic violence, warns woman judge, demonstrates“why the Mail is not a paper of record for case reports”. And
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