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“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.
Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:
A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.
All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.
Kings College Hospital NHS Foundation Trust v Thomas and others [2018] EWHC 127 (Fam) – read judgment
Updated: The Court of Appeal has now ruled that doctors at King’s College hospital, London, could remove Isaiah from the ventilator that has kept him alive since he was deprived of oxygen at birth and sustained catastrophic brain injury. The judges also refused the parents permission to appeal against this ruling. McFarlane LJ said
This case is not about the parents or their hopes. It is and must firmly be about Isaiah and his best interests.
Parental love is to be cherished by society, particularly when a child is sick. But the “flattering voice of hope” is not always in best interests of the object of that love. So concluded MacDonald J in a recent ruling which has attracted considerable media attention. The judge concluded that it was not in the 11- month old boy’s best interests for life-sustaining treatment to be continued. He was satisfied on the evidence of the court, he said, that the boy, Isaiah, had
no prospect of recovery or improvement given the severe nature of the cerebral atrophy in his brain
and that he would remain “ventilator dependent and without meaningful awareness of his surroundings”
Perhaps with the Charlie Gard publicity in mind, MacDonald J was careful to emphasise the weight of the medical evidence as against the parents’ assessment of the boy’s condition. The publicity sparked by this case has led to visits to the child by other medical professionals. There are some forceful concluding remarks in this judgement about the inappropriate nature of these possible “clandestine examinations”. These are now a matter for the police.
The judge also rejected the argument that the court should hear evidence from “foreign” experts on the approach from which other cultures might approach this question in terms of its ethics and outcome. There was a “world of difference” between medical expertise from abroad and a foreign “expert” who simply takes the view that the medical or ethical approach to these issues in this jurisdiction differs from that in their own practice.
It would be extremely unfortunate if the standard response to applications of this nature was to become one of scouring the world for medical experts who simply take the view that the medical, moral or ethical approach to these issues in their jurisdiction, or in their own practice is preferable to the medical, moral or ethical approach in this jurisdiction.
The higher courts may have shut for the summer and judges escaped to tropical retreats, but the UK Human Rights Blog rumbles on. Welcome 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:
Legal Aid
The Pink Tape blog picks up on another “teensy glitch” with the Legal Aid, Sentencing and Punishment of Offenders Bill, noting that applicants for non-molestation orders will be disinclined to accept an undertaking from a respondent (“a solemn promise to the court not to behave in a particular way, which is punishable by imprisonment and can stand in the stead of an non-molestation order”), as in doing so, s/he will be disqualified from legal aid entitlement.
Welcome back to the UK Human Rights Roundup, your regular bustling bonanza 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 Sarina Kidd.
After a long wait, the European Court of Human Rights delivered its judgment on state immunity in civil proceedings in Jones and Others v UK. Meanwhile, an atheist has been granted asylum on religious grounds and the Supreme Court ruled that a child’s views are relevant to the evaluation of their habitual residence.
The European Court of Human Rights has ruled that the applications to the ECtHR in Nicklinson and Lamb v UK, cases concerning assisted suicide and voluntary euthanasia, are inadmissible.
This is the latest development in a long running series of decisions concerning various challenges to the UK’s law and prosecutorial guidelines on assisted suicide and voluntary euthanasia. You can read the press release here and the full decision here. Continue reading →
Secretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014 – read judgment
Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.
Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.
Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.
Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?
The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.
The Judiciary website will be publishing the full judgment tomorrow morning, but for those seeking it before then, I have uploaded it here. Below is the very helpful summary of the judgment sent to me by the Judicial Office (with apologies for the numbering, which is a quirk of the blog formatting, not the summary).
The Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.
Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?
The High Court has dismissed an application for judicial review regarding the use of Automated Facial Recognition Technology (AFR) and its implications for privacy rights and data protection.
Haddon-Cave LJ and Swift J decided that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilised society. The Court also held that South Wales Police’s (SWP) use to date of AFR by has been consistent with the requirements of the Human Rights Act 1998 (HRA) and data protection legislation.
Nonetheless, periodic review is likely to be necessary. This was the first time any court in the world had considered AFR. This article analyses the judgement and explores possible avenues for appeal.
There has been much in the press recently about the UK Government being minded to opt out, and/or in, of EU criminal justice measures. The implications of this decision will be significant to the UK’s ability to investigate and prosecute crime. So what does it all mean?
Opting out of what?
The UK managed to negotiate the quite remarkable article 10 to protocol 36 of the Lisbon Treaty which allows for the UK to exercise a power that no other member state of the Union holds. The Lisbon Treaty finally incorporates EU criminal justice measures (which are referred to as the area of police and judicial cooperation in criminal matters) into the main body of treaty law.
In order to do so, it allowed a transitional period of five years (which expires in December 2014), at the end of which, all measures adopted under the earlier treaty provisions (in what was known as the third pillar) are ‘Lisbonised.’ What this means is they become directives rather than framework decisions (and various other equivalents). The difference between the two is that directives are enforceable before the Court of Justice of the European Union (CJEU) and decisions are not.
Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.
Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment
This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.
3 main points arose on appeal.
The first was the jurisdictional question under Art.1 of the Convention – were Iraqi civilians killed or injured by British servicemen covered by the ECHR?
The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).
And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.
I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.
G v E & Ors [2011] EWCA Civ 939 – Read judgment – 1COR’s Guy Mansfield QC appeared for the Respondent. He is not the author of this post.
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
Lady Hale, who delivered the court’s judgment (Photo: Guardian)
R(C) v. Secretary of State for Justice [2016] UKSC 2 – read judgment.
When is it right to keep the names of parties to litigation a secret? That was the difficult question the Supreme Court had to grapple with in this judgment, handed down on Wednesday. The decision to allow a double-murderer to remain anonymous led to outraged headlines in the tabloids. Yet the Court reached the unanimous conclusion that this was the right approach. Why?
The Facts
C, who had a long history of severe mental illness, was convicted of murdering his ex-girlfriend and her new partner in 1998 and sentenced to life imprisonment with a minimum term of 11 years before parole could be considered. The murder was described by Lady Hale as “a particularly savage killing which must have caused untold suffering to the victims and has continued to cause great grief to their families.” During his sentence C was transferred from prison to a high security psychiatric hospital. Whilst there, in 2012, C’s treating doctors applied for permission to allow him unescorted leave in the community in order to assess how well his treatment was progressing and whether he would be suitable for discharge. The Secretary of State refused to allow this.
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“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies. 
The higher courts may have 
Welcome back to the UK Human Rights Roundup, your regular bustling bonanza of human rights news and views. The full list of links can be found 
The City of London has succeeded in its court High Court battle against the Occupy London movement which is currently occupying an area close to St Paul’s Cathedral. As things stand, subject to any appeals, the movement has been evicted.
The 
There has been much in the press recently about the UK Government being minded to opt out, and/or in, of EU criminal justice measures. The 
G v E & Ors [2011] EWCA Civ 939 – 
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