Search Results for: right to die


“No union more profound”: The US Supreme Court’s ruling on same-sex marriage

30 June 2015 by

Photo credit: Guardian

Photo credit: Guardian

The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.

In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.

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Supreme Court – the right to be on the beach

25 February 2015 by

_50586770__49414358_2b0a52bb-7425-4bca-b5ff-2253df1dc7fa-1The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council  [2015] SC 7 25 February 2015- read judgment

Late February is not necessarily the best time of year for a bit of UK sea swimming. But the Supreme Court has just come out with interesting judgments about whether there is a right to go to the beach and swim from it. For reasons I shall explain, they were anxious not to decide the point, but there are some strong hints, particularly in the judgment of Lord Carnwath as to what the right answer is, though some hesitation as to how to arrive at that answer. 

It arose in a most curious setting – East Sussex’s desire to register West Beach, Newhaven as a village green under the Commons Act 2006. But a beach cannot be a village green, you may say. But it is, said the Court of Appeal (see Rosalind English’s post here), and the Supreme Court did not hear argument on that point.

Now to the background for the present decision.

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Woman’s wish to donate unwanted embryos to scientific research rejected by Strasbourg Court

8 September 2015 by

cdce0842e2fac4bcf0335ab5c367-is-embryonic-stem-cell-research-wrongParrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment

The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures. 

A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.

The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.

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Public interest environmental litigation in Strasbourg

7 July 2013 by

zimbabwe_environmental_law_association_(zela)Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article 

Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth. 

The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?

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Supreme Court rules on true employment status of a contractor in Pimlico Plumbers case

18 June 2018 by

Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29 – read judgment

The Supreme Court has unanimously dismissed Pimlico Plumbers Ltd’s appeal and upheld the Employment Tribunal’s ruling that the Respondent – Mr Smith – a plumbing and heating engineer had been:

(a) a “worker” within the meaning of section 230(3) of the Employment Rights Act 1996;

(b) a “worker” within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833)

(c) in Pimlico’s “employment” within the meaning of section 83(2)(a) of the Equality Act.

Questions concerning the true employment status of individuals who are presented to the paying customer as being an integral part of the business in question are increasingly common. Despite being presented to the end customer as such, the purported legal reality is that the individual is self-employed for both tax and employment law purposes. This is partly what is described by such arrangements being part of the so-called “gig economy”.
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Will the new criminal legal aid reforms breach the right to a fair trial?

16 May 2013 by

Chris Grayling, justiceOne of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.

In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?

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“Sons of Cadder” – Supreme Court rulings on legal advice during police interviews

24 November 2011 by

Jude and others (Respondents) v Her Majesty’s Advocate (Scotand) [2011] UKSC 55 – read judgment;  McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) [2011] UKSC 54 – read judgment

In these two cases the Supreme Court has considered whether  the failure to take up on  legal representation during police interview amounted to a waiver of the right of access to legal advice for the purposes of determining whether the trial had been fair.

Both cases involved detention of individuals which had taken place prior to the decision of this Court in Cadder v Her Majesty’s Advocate [2010] UKSC 43 (see our post)  and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials.
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Withdrawal of nutrition and hydration would not offend right to life – Strasbourg Court

16 June 2015 by

P3_010457_Sonde_SHS_PUR_violett_Kurzzeit_SG8_80_A6_RGB_575px_01Lambert and Others v. France (application no. 46043/14) – read judgment

In an important step away from Pretty v UK, the Grand Chamber of the Strasbourg Court has upheld the right of to die with dignity by ruling that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights if artificial nutrition and hydration were to be withdrawn from a patient in a persistent vegetative state.

Although the facts were very different, it is heartening to see Strasbourg at last allowing the argument that the state’s obligation to protect life also involves a duty to respect people’s rights to exit life with dignity. The importance of this ruling cannot be underestimated, as can be seen in the ferocity of dissent set out in the Separate Opinion annexed to the judgment (discussed at the end of this post.)

The case involved a challenge by some of the patient’s family members to a judgment delivered on 24 June 2014 by the Conseil d’État which authorised this step.  The following summary of the facts and judgment is based on the Court’s press release.

Background facts

Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. At the time of this hearing he was in the care of a hospital which specialises in patients in a vegetative or minimally conscious state.In 2011 his condition was characterised as minimally conscious and in 2014 as vegetative. He receives artificial nutrition and hydration which is administered enterally, through a gastric tube.
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A lift in a burning building? – Grand Chamber rules on terrorist Article 6 claims

19 September 2016 by

Ibralondon-bombings21him and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment here

The Grand Chamber has found a violation of Article 6(1) and 6(3)(c) in relation to one of the four applicants before it, partially overturning the earlier decision of the Chamber and providing much food for thought on the future of Article 6.

by David Scott. Many thanks to my colleagues at University of Zurich for comments on earlier drafts of this piece. Any mistakes are undoubtedly my own.

 
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Education not recognised as a “civil right” under Convention due process rules

29 March 2010 by

R (on the application of LG) (Appellant) v Independent Appeal Panel for Tom Hood School (Respondent) & Secretary of State for the Department for Children, Schools and Families (Interested Party) [2010] EWCA Civ 142

(Read judgment here)

CA (Civ Div) (Rix LJ, Wilson LJ, Sir Scott Baker) February 26 2010

An exclusion hearing by a school does not engage the pupil’s Article 6 of the Convention since there is no “civil right” to education recognized as such either by the Convention or by domestic law.

Summary

The appellant pupil (VG) had been involved in a fight at the school. He was accused of having a knife, which he denied. The school permanently excluded VG and he appealed. The panel, in accordance with the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 reg.7A, found on the balance of probabilities that he had carried a knife, and upheld his exclusion. VG appealed against a decision ((2009) EWHC 369 (Admin), (2009) BLGR 691) to refuse his application for judicial review of the decision of the respondent panel to uphold a decision to permanently exclude him from a school. He argued that his right to a fair hearing under Article 6 was engaged, either on the basis that the panel had determined his civil right not to be excluded from the school without good reason, or on the basis that the panel had determined a criminal charge against him, and that right had been infringed by the decision to exclude him having been based on allegations established against him on the balance of probabilities rather than on the criminal standard of proof. He also contended that regulation 7A(c), although purportedly made pursuant to the Education Act 2002 s.52, was ultra vires in that a rule about standard of proof was one of evidence and not procedure as permitted by s.52(3)(d).

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Supreme Court rejects right to die appeals

25 June 2014 by

Tony NicklinsonR (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 – read judgment

On appeal from [2013] EWCA Civ 961

The Supreme Court has declined to uphold a right to die a dignified death.  However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

But the majority concluded that this was a matter for Parliament, not for the Courts.

The following summary is from the Supreme Court’s Press Summary

Bacground 

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful.
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Supreme Court of Canada upholds physician-assisted dying

9 February 2015 by

TaylorCarter v. Canada (Attorney General), 2015 SCC 5 (CanLII) 6 February 2015 – read judgment

The Supreme Court of Canada has upheld a challenge to the constitutionality of the prohibition on assisted dying, saying that since they last ruled on this issue in the 1993 case of Rodriguez (where a “slim majority” upheld the prohibition), there had been a change in the circumstances which “fundamentally shifted the parameters” of this debate.

The Court issued a declaration of invalidity relating to those provisions in the Canadian criminal code that prohibit physician assisted dying for competent adults who seek such assistance as a result of a “grievous and irremediable” medical condition that causes “endurable and intolerable” suffering. These laws should be struck down as depriving those adults of their right to life, liberty and security of the person under Section 7 of the Canadian Charter of Rights (The Constitution Act 1982)

Importantly, the court recognised what has long been proposed by campaigners on both sides of the Atlantic, that the prohibition deprives some individuals of life, as it has the effect of forcing people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.
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The right of appeal against refusal of a residence card: where are we up to?

27 February 2018 by

CJEUOne way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was upheld by the Supreme Court).

For as long as the UK remains in the EU, there is also an alternative option – an application under the Immigration (European Economic Area) Regulations. This offers a route for the family of an EU citizen to apply for a UK residence card.

But the law in this area concerning the right of appeal has been on the move. This article will aim to give an update of where we are up to and what is still yet to be decided.

UPDATED following the Advocate General’s opinion in Banger – see end of this post.

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Do burglars have human rights?

4 April 2011 by

The proposition that burglars have rights incites debate, and sometimes anger, which is often directed towards the Human Rights Act 1998 and the European Convention of Human Rights. However, on closer examination, the idea of “burglars’ rights” is not a new phenomenon in English law, and nor has it been imposed upon us by Strasbourg. The rights that burglars enjoy have long been part of the fabric of English common law.

There is nothing new about the idea that criminals in general, and burglars in particular, have forfeited their human rights by virtue of their criminality.

As Michael Cholbi of the University of New York has described in his article discussing felon disenfranchisement in the United States, “A Felon’s Right to Vote”, the strong conviction held by some that criminals should not enjoy the benefit of human rights is founded upon a basic intuition that “criminal acts alter the moral status of wrongdoers, permitting us to do to them what is otherwise unjust”. Essentially, having demonstrated an unwillingness to regulate their own conduct, criminals cease to be an object of moral concern.
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Is internet access a human right?

11 January 2012 by

A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.  

Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.

But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-calledfather of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:

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