human rights
3 March 2013 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.
This week saw three new appointments to the UK Supreme Court, which has in turn prompted discussion of equality and diversity within the senior judiciary (unsurprisingly, all three of them are white, male and “of a certain age”), as well as Conservative warnings over withdrawal from the European Court of Human Rights.
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3 March 2013 by Adam Wagner
Today’s Mail on Sunday reports that the Home Secretary is to announce “soon” that the Conservative Party’s election manifesto for 2015 will include a pledge to withdraw from the European Court of Human Rights if the party obtains an overall majority.
I thought it would be useful to answer a few basic questions about what this would might mean for the UK. Bizarrely, the article appears alongside the Prime Minister’s opinion piece in the Sunday Telegraph promising that his party would not “veer right” and also “stick to the course we are on“. Talk about mixed messages. Anyway, let’s concentrate on Strasbourg. For a basic introduction to the Court and what it does, see my recent post: No, The Sun, the Human Rights Act is not the EU and David Hart QC’s A bluffer’s guide to human rights courts.
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27 February 2013 by Martin Downs
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – Read judgment
The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.
The narrowness of the majority might have had something to do with the fact that the father of the Child had been a party to the case in the domestic courts and opposed the adoption (although the fact that the child of the lesbian couple in Gas and Dubois v France had been conceived through anonymous donor insemination had not helped that case). In the event, the Grand Chamber decision was based on the fact that the Austrian Supreme Court had referred to the “legal impossibility” of the proposed same sex adoption in this case.
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24 February 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular booster shot 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.
Unsurprisingly, Theresa May’s views on the role of immigration judges sparked much debate this week – yet haven’t stopped the judges making findings that Immigration Rules are unlawful. The consequences of the dismissal of the Pryce jury are still playing out, while the Strasbourg Court has made an important ruling on discrimination based on sexual orientation. Keep an eye out on some new events advertised this week, and various updates in the legal blogging world.
by Daniel Isenberg
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22 February 2013 by Guest Contributor
Good Friday Agreement
Advice on a Bill of Rights for Northern Ireland, submitted to the Secretary of State by the Northern Ireland Human Rights Commission in 2008, was roundly rejected by the UK government in 2009 and there seems to be little appetite within the Northern Ireland Office for revisiting the issue in the foreseeable future.
In London, the coalition government’s Commission on a UK Bill of Rights, set up in 2011, reported in 2012 but could not suggest an agreed way forward on a UK basis. In Scotland, on the other hand, bearing in mind the forthcoming referendum on independence in 2014, there is renewed interest in whether legislation should be passed by the Scottish Parliament to guarantee a range of social and economic rights. The Republic of Ireland, for its part, is currently re-examining its Constitution and has recently voted in a referendum to enhance the protection of children’s rights.
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19 February 2013 by Adam Wagner
Sir John Donaldson (National Portrait Gallery)
Another title for this post might have been “they did not want to understand the judgment.”
In light of recent shenanigans, it seems apt to reproduce the first five paragraphs of the 25-year-old Court of Appeal judgment in (1) Nadarajah Vilvarajah, (2) Vaithialingham Skandarajah v Secretary of State For the Home Department 1990 WL 754859 (Update – download from BAILII here), which I was alerted to by a colleague. Sir John Donaldson, then Master of the Rolls, complains in withering style about media coverage of a recent judgment. The last line is the best, although a little depressing.
Lessons learned? The more things change, the more they stay the same. Political posturing over immigration and asylum law long predated the Human Rights Act. And Law in Action was as good then as it is now.
Here is a taster:
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18 February 2013 by Guest Contributor
The Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday (to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.
Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
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18 February 2013 by Richard Mumford
RCW v A Local Authority [2013] EWHC 235 (Fam) (12 February 2013) – Read judgment
This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.
She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.
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18 February 2013 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your regular booster shot 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
Survey on LASPO impact
ilegal founders Patrick Torsney and Colin Henderson have launched a survey in collaboration with Centre for Human Rights in Practice researchers at the University of Warwick, focused on discerning the impact of LASPO legal aid cuts to professionals working in relevant sectors and their clients. Participation has been encouraged by both the Legal Voice and Pink Tape blogs, and the survey itself may be found here.
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15 February 2013 by Amy Mannion
BETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD [2013] ECHR 97 – Read judgment
On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’. The media furore, at varying degrees of accuracy, here and here.
The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress. In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003). The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review. However, damages could meet the ‘frustration’ he had been caused.
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11 February 2013 by Rosalind English
Ali Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) – read judgment
Collins J has dismissed a claim that the MOD’s policy of allowing interrogators to shout at a captured person in order to obtain information is unlawfully oppressive. Not only did the complaint fail but it was denounced as “misconceived” and one which should never have been pursued.
Background
British armed services have two policies for questioning captured persons (CPERS) who are believed to possess valuable information which may protect the lives of other members of the forces or civilians, for example the location of roadside bombs.
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10 February 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your recommended weekly dose 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.
Same-sex marriage was the talking point of this week, with the Bill passing its first vote in the House of Commons. The courts have also been passing judgment on various acts of the police and the UK military; and immigration, asylum and extradition remain in the headlines. Keep an eye out on some interesting cases from Russia reaching Strasbourg; and a double-header of events featuring former ECtHR President Jean-Paul Costa (see ‘Upcoming Events’).
by Daniel Isenberg
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10 February 2013 by Adam Wagner
I was watching the England football team beat Ireland in the World Cup earlier when I was tweeted a cracking bit of legal gobbledegook from The Sun: Youngsters at risk after EU ruling. According to The Sun, Now the “EU could let fiends like him prey on your children“.
For the record, the Court of Appeal, which produced the judgment, is not an EU court. It is an English and Welsh court, based in the Royal Courts of Justice in London. And the EU had absolutely nothing to do with this judgment, which was about CRB checks and Article 8 of the European Convention on Human Rights (the right to family and private life); you can find our analysis here. I won’t address the detail if the judgment here; read our summary and see if you think The Sun is right.
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8 February 2013 by Rosalind English
Sandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment
In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.
Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is.
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3 February 2013 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your recommended weekly dose 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.
This week, the focus of the online commentary has been very much on the subject of equal access to justice, which is beset on all sides from legal aid cuts, the proposals for secret courts to protect sensitive government information, the lack of representation for the judiciary in the government, and the efficiency drive in Strasbourg.
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