Round Up


What is the correct standard to be applied in police misconduct cases? Plus a new inquiry launches, and cake goes to the ECtHR – the Round Up

19 August 2019 by

Conor Monighan brings us the latest updates in human rights law

cake

Credit: The Guardian

In the News:

An application in the Ashers ‘gay cake’ case has been lodged at the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.

Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve.
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The Weekly Roundup: Police powers and freedom of information

12 August 2019 by

Photo by Andrew Parsons

In the news

On Friday, Prime Minister Boris Johnson set down his stance on law and order in three major announcements, fulfilling his promise to ‘come down hard on crime’. This follows the announcement of 20,000 ‘extra’ police officers a few weeks ago.

Firstly, Home Secretary Priti Patel announced enhanced stop-and-search powers for police officers under s.60 Criminal Justice and Public Order Act, on the basis of a ‘knife-crime epidemic’. Under the new rules, an officer need only believe that a violent incident ‘may occur’, not that it ‘will’, and a lower level of authorisation will be required to exercise the power.

Secondly and thirdly, Mr Johnson has promised penal reforms. The Ministry of Justice has allocated £2.5bn to create ‘modern, efficient prisons’, including 10,000 new prison places. Alongside this, Mr Johnson has announced a sentencing review, by which he hopes to increase sentences for violent and sexual offenders, and reduce the use of ‘early release’ on licence – currently available to most offenders after they served half of their sentence, under the Criminal Justice Act 2003.

The resources of this crackdown are welcome, especially with an extra £85m for the chronically underfunded CPS. However, the approach is controversial. Stop-and-search in particular has been heavily criticised in the past. Some say that it is ineffective – a study released by the Home Office in 2016 found that enhanced stop-and-search had not decreased crime when used in key London boroughs. Others say that the policy is discriminatory in its application, and worsens the relationship between the public and the police, drawing links to the 2011 London riots.

The review of the Prevent counter-terrorism initiative is expected to begin today, following the appointment of the independent reviewer. However, the process of appointing the reviewer has been criticised for its opacity – Ed Davey MP has spoken of a ‘whitewash’, while Liberty director Martha Spurrier has suggested that the government are ‘[shielding] Prevent from the scrutiny it desperately needs’.

In further unwelcome news, a report found that a chartered deportation flight lacked ‘common decency’ towards passengers. Passengers were subjected to excessive restraint (up to 14 hours at a time); not allowed appropriate privacy when using the toilet; not appropriately supervised; and subject to long delays. This was followed by revelations that the Home Office used restraint against deportees in 447 cases between April 2018 and March 2019, as reported by Guardian.


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Round Up 22.07.19 – A series of interesting cases decided as the government prepares to depart…

22 July 2019 by

gauke

Outgoing Secretary of State for Justice David Gauke. Credit: The Guardian.

The week ahead will, barring some extreme political drama, give us a new Prime Minister, and with it, the inevitable cabinet reshuffle. Some ministers have already made clear they believe they are unlikely to remain in post after the new PM’s appointment on Wednesday, in particular the Chancellor Phillip Hammond, and the Secretary of State for Justice David Gauke.

Whoever takes over at the Ministry of Justice will have a significant inbox. Cuts to legal aid were brought to the fore this week after it emerged a relative of those killed in the 2017 terrorist attacks at London Bridge was represented pro-bono by lawyers from international corporate law firm Hogan Lovells (see The Independent here). Mr Gauke used his forthcoming departure from post to propose scrapping short custodial sentences in a bid to reduce re-offending rates. However, the incoming Lord Chancellor will still be considerably better off than their new boss, for whom the “to do” list includes getting an oil tanker back from Iran and concluding Brexit.

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Landmark ruling for inquests and Chelsea Manning released from prison: The Round Up

13 May 2019 by

Conor Monighan brings us the latest updates in human rights law

Manning

Credit: The Guardian

In the News:

Chelsea Manning, the ex-US intelligence analyst, was released from prison last week.

Manning was found guilty of a variety of charges in 2013, including espionage. She was subsequently given the longest sentence for a security leak in US history. After serving an initial period in jail, the remainder of her sentence was commuted by President Obama in 2017 on the basis that it was “disproportionate” to her crimes.

Ms. Manning has since refused to testify to a grand jury about her connections to WikiLeaks and Julian Assange (its founder). She claims that she has already given testimony as part of her trial in 2013, and objects to the grand jury system in principle. However, prosecutors have suggested that her evidence may have been inaccurate. A judge in Virginia ordered her to be taken into custody for 62 days.

She was released last week after the 62 day period elapsed. In the meantime, however, Ms. Manning was served with another subpoena which requires her to appear before a grand jury on May 16th in order to testify about the same issues. It seems likely, therefore, that she will be imprisoned again for contempt of court.
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This week’s round up – Williamson fired over Huawei and the courts return after Easter

7 May 2019 by

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Former Secretary of State for Defence Gavin Williamson. Credit: The Guardian.

Despite the return of the courts on Monday, it was another relatively light week in terms of decisions in the fields of public law and human rights. However, the High Court decided a number of interesting clinical negligence cases, whilst the Court of Appeal gave judgement in the case of TM (Kenya), R (On the Application Of) v Secretary of State for the Home Department [2019] EWCA Civ 784.

TM (Kenya) concerned a 40 year old Kenyan woman who faced deportation after her applications for leave to remain and asylum were rejected by the Home Office. She had been detained at Yarl’s Wood Immigration Removal Centre in advance of proceedings to remove her from the country, during which time she had been uncooperative with staff. In light of her behaviour and in advance of her removal to Kenya, she was removed from free association with other detainees. Such detention was authorised by the Home Office Immigration Enforcement Manager at Yarl’s Wood, who was also the appointed “contract monitor” at the centre for the purposes of section 49 of the Immigration and Asylum Act 1999.

She sought judicial review of the decision to deprive her of free association. The initial application was refused. She appealed to the Court of Appeal where she advanced three grounds, including that her detention was not properly authorised.

The court found no conflict in the dual positions held by the manager at Yarl’s Wood. The Home Secretary had legitimately authorised her detention under the principles described in Carltona Limited v Commissioners of Works [1943] 2 All ER 560. In addition, there was no obligation to develop a formal policy concerning removal from free association, as Rule 40 of the Detention Centre Rules 2001 was sufficiently clear to meet the needs of transparency.
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Court of Appeal upholds ‘acoustic shock’ and Lord Sumption’s comments on assisted suicide- the Round Up

22 April 2019 by

Conor Monighan brings us the latest updates in human rights law

L Sumption

Credit: The Guardian

In the News:

Lord Sumption, the recently retired Supreme Court judge, has suggested that the law on assisted suicide ought to be broken.

Lord Sumption said that whilst assisted suicide should continue to be criminalised, relatives of terminally ill patients should follow their conscience and not always abide by it. As he put it, “the law should be broken from time to time”.

The former judge argued that the law’s current position helps prevent abuse, and that any change to it could only be produced by a political process.

His comments were made as part of the Reith Lectures, a series of annual radio lectures on BBC Radio 4. Lord Sumption’s lectures ask whether the legal process has begun to usurp the legislative function of Parliament. His first lecture will be made available on the 21st May.

In Other News….

  • Research has revealed that 55,000 pupils have changed schools for no clear reason during the past five years. A report from the Education Policy Institute suggests some schools have been unofficially excluding students with challenging behaviour or poor academic results, as part of a practice known as “off-rolling”. One in 12 pupils who began education in 2012 and finished in 2017 were removed at some stage for an unknown reason. Just 330 secondary schools account for almost a quarter of unexplained moves. The Department for Education said it was looking into the issue, and that it had written to all schools to remind them of the rules on exclusions. More from The Week here.
  • Parliament’s Joint Committee on Human Rights (JCHR) has warned that the rights of detained children are being repeatedly breached. In a report published last Thursday, it recommended that Young Offenders’ Institutions should be banned from deliberately inflicting pain on young offenders and from putting them in solitary confinement. It found that hospitals and jails are restraining children too frequently, and that such techniques are being used disproportionately against ethnic minorities. Around 2,500 young people are in detention at present. More from the Guardian here.
  • The activities of Extension Rebellion, the climate change group, sparked discussion and controversy this week. The organisation has three core demands: greater transparency about climate change, a legally binding commitment to zero carbon emissions by 2025, and the creation of a citizens’ assembly to oversee the issue. The group has staged protests in London for the past week, which has included shutting down a large portion of Oxford Street. Over 800 people have been arrested. The group has been criticised for adding pressure on already overburdened police force, and for the disruption caused to people’s lives and businesses. Extinction Rebellion has announced that it will pause its protests for the duration of next week. More from the BBC here.

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The Round up: Begum, knife crimes, Tamil Tigers and disability discrimination

25 February 2019 by

In the news 

This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless. 

The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”


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Housing Association can discriminate on religious grounds. Plus fracking and indefinite detention: The Round Up

11 February 2019 by

Conor Monighan brings us the latest updates in human rights law

prison

Credit: the Guardian

In the News:

The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.

The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions.
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The Round-up: Domestic Violence Consultation and some Strasbourg cases

28 January 2019 by

In the News 

The Home Office has published a domestic violence consultation response and draft bill  as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech. 

The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services. 

Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.


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The Round-Up: Worboys Ruling Strikes a Blow to Parole Board Privacy, Criminal Bar to Strike over Legal Aid Cuts, and Did Vote Leave Breach Election Law?

2 April 2018 by

John Worboys is escorted in handcuffs into the royal courts of justice.

Image Credit: Guardian

R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].

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Developments in the oversight of British Troops abroad – the Roundup

5 October 2016 by

 

https://i0.wp.com/i.guim.co.uk/img/media/d19fc6a2d0ce552588dcf4b500c2116063496673/0_0_2048_1229/master/2048.jpg?resize=620%2C372&ssl=1

In the news

The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.

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Unlimited Immigration Detention and the Right to Liberty – the Round-up

24 May 2016 by

Photo credit: RT

In the news

The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.

The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.

This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.

The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.

It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.

In other news

The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.

A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.

The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo

In the courts

The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).

The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.

The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.

Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.

Publications

Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.

UK HRB posts

CA says ex-pats cannot say yes or no to Brexit – David Hart QC

The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner

Three Way in the Supreme Court: PJS remains PJS – David Hart QC

The National Preventive Mechanism of the United Kingdom – John Wadham

Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC

Hannah Lynes

Refugee crisis tests Europe on human rights – the Round-up

8 March 2016 by

Photo Credit: The Financial Times

In the news

Stemming migration flows from Turkey has been set as “a priority” at the 7 March emergency summit of EU and Turkish leaders in Brussels. EU officials are seeking to persuade Turkey to enforce the ‘action plan’ signed in November, under which Ankara agreed to curb the number of refugees crossing into Greece in return for three billion euros in aid and the speeding up of its EU membership bid.

However, human rights groups have been critical of the EU focus on ensuring refugees remain in Turkey. Amnesty International warned ahead of the meeting that is was “unacceptable” to expect that responsibility should be carried by a country already hosting three million refugees.

“Using Turkey as a ‘safe third country’ is absurd. Many refugees still live in terrible conditions, some have been deported back to Syria and security forces have even shot at Syrians trying to cross the border,” said Gauri van Gulik, Amnesty’s Deputy Director for Europe and Central Asia.
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Visa scheme exposes workers to abuse -the Round-up

25 January 2016 by

In the news

Domestic worker visas are leaving women vulnerable to conditions of abuse that amount to modern slavery, according to an independent review commissioned by the Home Office.

The current system ties overseas domestic workers to the foreign employer who brought them into the UK. Approximately 17,000 visas were issued under the scheme last year, with the large majority of applications coming from the Gulf States.

Workers have no legal right to change their employer, and are liable to deportation if they escape their situation. Campaigners argue that such restrictions expose women to the risk of serious ill treatment, with domestic workers being subjected to physical and sexual violence, deprivation of food and non-payment of wages.

The review of the scheme reinforces these concerns, finding “no evidence that a tie to a single employer does anything other than increase the risk of abuse and therefore increases actual abuse.” It recommends that workers be permitted to change employers and remain in the UK for up to two and a half years.

The Government has stated that it is “carefully considering the report’s recommendations” and would announce its response “in due course.”

In other news:

BBC: An independent investigation into concerns about Yarl’s Wood immigration centre has found no evidence of a “hidden or significant problem of serious misconduct” by staff at the facility. However, the report raised concerns that staffing levels had to some extent “undermined and compromised” the care of residents.

The Guardian: The Upper Tribunal has ordered the Secretary of State for the Home Department to admit to the UK four asylum seekers, currently residing in the ‘Jungle’ in Calais. The Tribunal ruled that the three unaccompanied minors and the dependent adult brother of one of them should be allowed to live with their relatives already in Britain while their asylum claims are examined.

Prime Minister David Cameron has said that there is now “an industry trying to profit from spurious claims” against UK military personnel which he plans to “stamp out”. However, lawyers have noted that the government has agreed to pay compensation in over 300 cases of abuse, and have urged Mr Cameron not to challenge the principle that no-one is above the law. The BBC reports here.

In a letter written to the Guardian, UK lawyers have sought to draw attention to the plight of human rights defenders in Honduras. Between 2010 and March 2015, the national commissioner of human rights recorded the targeted killings of 91 lawyers. The statement calls for greater protection by the Honduran state for those whose lives are at risk.

In the courts

Ivanovski v The Former Yugoslav Republic of Macedonia

This case concerned lustration proceedings brought against the former president of the Constitutional Court of Macedonia, which resulted in his dismissal from office.

The Court found that the proceedings, taken as a whole, had not satisfied the requirements of a fair trial. The Court attached particular importance to the open letter, published by the Prime Minister while lustration proceedings were still pending, which denounced the applicant as a collaborator of the secret police of the former regime. In view of the content and manner in which it was made, the statement was held to be incompatible with the notion of an “independent and impartial tribunal”. The Court therefore found a violation of Article 6 ECHR (the right to a fair trial).

UK HRB blog posts

Court of Session: Murderer’s prison conditions fair – Thomas Raine

UK Government tells High Court: Same-sex couples may be shut out of Article 14 – Professor Robert Wintemute

Stop Powers under the Terrorism Act 2000 incompatible with Article 10 – David Scott

Events

UCL will be hosting a lecture by Professor George Letsas – The Moral Dimension of Proportionality. The event will take place at 18.00 on the 17 March 2016. More information can be found here.

Hannah Lynes

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