By: Guest Contributor


Good enough for jazz: how well does the government need to understand its Paris Agreement obligations? A case of emissions and omissions

24 January 2023 by

In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.

Photograph: Tom Pilgrim/PA; the Guardian.

The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:

  1. the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
  2. however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
  3. having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
  4. failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.

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Prof Brice Dickson: The UK’s Engagement With International Human Rights Monitoring Mechanisms

5 December 2022 by

The UN human rights council on 13 March 2018 in Geneva, Switzerland. Photograph: Fabrice Coffrini/AFP/Getty Images

We are pleased to welcome this guest post from Prof Brice Dickson, Emeritus Professor of International and Comparative Law at Queen’s University Belfast, in which he sets out the international human rights monitoring mechanisms applicable to the UK and considers the UK’s engagement with the relevant monitoring processes (Eds).

On 10 November 2022 the UN Human Rights Council conducted its fourth Universal Periodic Review of the UK’s compliance with international human rights standards. The Council’s report was adopted just six days later and contained no fewer than 302 recommendations from other States on how the UK could improve its human rights record. That figure is up from 227 in 2017. For early accounts of the review meeting see the pieces by Marcial Boo and Robert Booth

The UPR, of course, is just one of many international mechanisms for monitoring human rights in the UK. In a book published this month, International Human Rights Monitoring Mechanisms: A Study of their Impact in the UK, I examine the full range of monitoring mechanisms to which the UK is subject and attempt to evaluate how they have operated to date, especially since 2000. In particular, I try to determine what difference they have made to the protection of human rights in practice. The analysis extends to monitoring conducted by a committee of the International Labour Organisation and by the Council of Europe’s Group of States against Corruption (GRECO), two bodies which do not usually attract the attention of human rights lawyers. 


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Mortier v. Belgium: A Landmark Decision on Euthanasia in the Case of Mental Illness

24 October 2022 by

In this guest post, Dr Ilaria Bertini, Research Fellow at Bios Centre, examines the recent decision of a Chamber of the Third Section of the European Court of Human Rights in Mortier v. Belgium, which examined Belgian law relating to euthanasia.

Introduction

The European Court of Human Rights recently delivered a landmark judgment, Mortier v. Belgium (78017/17), on a case of euthanasia.

The case concerns an adult Belgian citizen who underwent a euthanasia procedure at a time when she was suffering from severe depression, without her son or daughter being properly informed. Hence her son, Tom Mortier, claimed that the government failed to protect both her right to life (art. 2 ECHR) and her right to respect for private and family life (art. 8 ECHR).

According to the Belgian Act on Euthanasia (28th May 2002) it is legal for a physician to perform euthanasia if the following three criteria are met: the patient is legally competent and conscious at the time of the request, the request is made autonomously without external pressure, and the patient is suffering from a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.” An independent second opinion might be needed to assess the patient’s willingness to die. Once the euthanasia is approved, there is a cooling off period of one month before the act takes place. Afterwards a Commission of 16 persons seeks to check all the reports to make sure that the procedure has complied with the law. 


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Drelon v France: Collection and retention of personal data concerning presumed sexual orientation was a violation of Article 8

20 September 2022 by

On 8 September 2022, the European Court of Human Rights (ECtHR) handed down its decision in Drelon v France (application nos. 3153/16 and 27758/18).[1] The Court unanimously found a violation of Article 8 of the European Convention on Human Rights in relation to the collection by the French Blood Donation Service, the Établissement Français du Sang (EFS), of personal data relating to a potential blood donor’s presumed sexual orientation and the excessive length of time the data was kept in a public institution.


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Local authority age assessments considered in R (HAM) v Brent LBC

22 August 2022 by

This decision, handed down by Swift J in the High Court, concerns the requirements for fairness in local authority age assessments for asylum seekers and the correct approach to be adopted.

Facts

The claimant, a Sudanese national, arrived in the UK on 21 May 2021 and made an application for asylum, claiming to be 17 years old. The local authority did not believe the claimant to be a child and assessed him to be 23 years old. The claimant was provided with initial accommodation in the area of the local authority. Social workers employed by the local council also assessed the claimant as being 23 years old. The claimant’s legal representatives on two occasions complained about the local authority’s decision, firstly levelling several criticisms of the way the age assessment process had been conducted and then enclosing additional evidence in respect of the claimant’s age and requesting a reconsideration, which the local authority rejected.


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What the Princess of Pop teaches us about Capacity – Belinda Cheney

7 July 2022 by

I was gripped by the Britney Spears saga. This phenomenally successful pop star was deemed to lack capacity in relation to most aspects of her life and finances for more than 13 years allowing her father full control over her considerable fortune and her person and critically, she was unable to object until the “Free Britney” movement highlighted the rampant injustice of the situation. Only then was she was permitted to appoint her own lawyer and “freed”. In this we consider briefly the  similarities and differences between the US conservatorship and the UK deputyship. 

Britney’s situation has thrown a glaring light on conservatorships and the potential for abuse. A number of famous people have had conservatorships – often temporary and some of their own volition. Randy Meisner (The Eagles) requested a conservatorship after the sudden death of his wife. Mickey Rooney (actor) had one imposed on account of being the subject of horrible physical and financial abuse from his 8th wife and her son.  Joni Mitchell (singer songwriter) had a temporary conservatorship after a severe brain aneurysm until she recovered. As stated in the NY Times on 22 June 2021,

Experts say conservatorships should prioritize the wishes of the conservatee and help them regain their independence. The arrangements are supposed to be a last resort for people who cannot take care of their basic needs, such as those with significant disabilities or older people with dementia, yet Ms. Spears has been able to perform and profit for more than a decade.

Basics of US Conservatorships

Conservatorships, known in many states as guardianship, are put in place for people who are significantly disabled by mental illness, elderly individuals who lack mental capacity due to medical conditions such as dementia, or individuals with developmental disabilities who lack the capacity to manage their own affairs. They are often temporary. In typical conservatorship proceedings, an allegedly mentally incapacitated person is evaluated by a qualified physician or psychiatrist who prepares a report documenting the person’s mental capacity that is provided to the court and may be used as evidence. The court must be satisfied that the individual must be unable to make decisions regarding food, clothing, shelter or medical decisions and/or they must be unable to manage financial affairs or resist undue influence. For conservatorships of the person (managing all aspects of daily life and medical care as opposed to finance) the bar is apparently a high one with these being reserved for those most seriously ill. There is also a power to grant limited conservatorships by which the person subject to it can still make some decisions for themselves e.g., where to live. Britney Spears was subject to both types and for a period of 13 years.


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Human rights and a divorce or civil partnership dissolution statement

28 February 2022 by

Statement as ‘conclusive evidence’

The European Convention 1950 guarantees the right to a fair trial. Everyone knows that. At article 6.1 the Convention says:

Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…. 

What everyone does not know is what is a ‘civil right’. And in the present context – namely divorce of civil partnership dissolution – do you have a right to query the assertion of your spouse or civil partner that your marriage or civil partnership has irretrievably broken down?

The Divorce, Dissolution and Separation Act 2020 simplifies the divorce and civil partnership dissolution process by changing the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove that, there was no longer any need to establish one or more facts: adultery (marriage only), unreasonable behaviour or living apart for varying periods. One, or both, parties can file a statement of irretrievable breakdown. The procedure for this is likely – no commencement date has been confirmed – to be in force from 6 April 2022. All so far so civilised.


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Bloomberg v ZXC – the Supreme Court decides — Aileen McColgan QC

24 February 2022 by

The UKHRB is grateful to Aileen McColgan QC for allowing us to republish her article, which originally appeared on Panoptican, a blog published by the barristers at 11KBW here.

The central question for the Supreme Court in Bloomberg v ZXC [2022] UKSC 5 was, as Lords Hamblen and Stephens put it (with Lord Reeds, Lloyd-Jones and Sales agreeing): “whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”. The short answer was “yes”.

The decision has been greeted with howls of indignation from Bloomberg but more muted responses from other sections of the press; whereas Bloomberg’s editor in chief released an editorial entitled “U.K. Judges Are Helping the Next Robert Maxwell” which stated that the judgment should “frighten every decent journalist in Britain”, the Financial Times and Guardian  were more restrained, pointing out respectively that the decision would have “far-reaching implications for the British media” and would “make it harder for British media outlets to publish information about individuals subject to criminal investigations”. This is no doubt the case, but it is worth noting that the publication which gave rise to this decision was based on a highly confidential letter leaked to Bloomberg and occurred apparently without any consideration of ZXC’s privacy interests.

ZXC, regional CEO of a publicly listed company which operated overseas (“X Ltd”), sued for misuse of private information because of an article concerning X Ltd’s activities in a country for which ZXC’s division was responsible. The activities had been subject to a criminal investigation by a UK law enforcement body (“the UKLEB”) since 2013 and the article was based almost completely on a confidential Letter of Request sent by the UKLEB to the foreign state. ZXC claimed that he had a reasonable expectation of privacy in information published in the Article, in particular in the details of the UKLEB investigation into himself, its assessment of the evidence, the fact that it believed that ZXC had committed specified criminal offences and its explanation of how the evidence it sought would assist its investigation into that suspected offending. ZXC’s application for damages and injunctive relief was upheld at first instance by Nicklin J and £25,000 awarded: [2019] EWHC 970 (QB); [2019] EMLR  20. Bloomberg’s appear was dismissed (see Panopticon post by Robin Hopkins and [2020] EWCA Civ 611; [2021] QB 28.


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The Independent Human Rights Act Review and the government’s Bill of Rights

24 January 2022 by

Do they have anything in common? Relatively little, says Nicola Barker, Professor of Law at the University of Liverpool.

When the IHRAR was announced by Robert Buckland in December 2020, it was accompanied by some of the usual rhetoric about the courts “rewriting” legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The Terms of Reference given to the IHRAR were relatively narrow and the Call for Evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.

However, in its consultation document, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184). In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the ‘living tree’ doctrine.

Given that the Review was only commissioned a year ago it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to section 6. The government propose to expand the exception in section 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that section 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142). It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK.

The more substantive questions of the balance between speech and privacy, between rights and responsibilities, limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.

The table below maps the government’s proposals for a new Bill of Rights on to the recommended and not recommended/rejected options in the IHRAR report. The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. Green text indicates where the government’s proposals broadly match a recommendation of the IHRAR, while red text indicates that the government are proposing something that the Review explicitly or implicitly cautioned against. Sometimes the proposals do not map in exactly the terms recommended or rejected by the Review, but I have matched them as closely as possible with the language used by each. For example, where the government proposals refer to ‘enabling’ UK courts to take account of case law from other jurisdictions and international bodies (a power they already can and do exercise), the Review did not consider affirming this existing power but rejected ‘requiring’ them to consider such case law. As the table illustrates, the government’s proposals bear little resemblance to the recommendations made by the IHRAR panel. More of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its Terms of Reference.

The Independent Review recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the Courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals. 

Table 1
Table 2
Table 3
Table 4
Table 5
Table 6

Nicola.Barker@liverpool.ac.uk

Brook House Inquiry: Phase 1 Hearings Reviewed – Appin Mackay-Champion

6 January 2022 by

‘A bleak, poorly staffed, highly charged and toxic environment.’ (Callum Tulley)

The Brook House inquiry has recently concluded its first phase of hearings which took place between November 23 and December 10, 2021 at the International Dispute Resolution Centre (IDRC). Brook House is an Immigration Removal Centre (IRC) beside Gatwick Airport, originally managed by the private security company G4S. The inquiry was set up to investigate the actions and circumstances surrounding the ‘mistreatment’ of male detainees at Brook House between April 1 to August 31 2017, and specifically, examining whether the treatment experienced was contrary to Article 3 ECHR (the right not to be subjected to torture, inhuman or degrading treatment). This followed the damning footage filmed by an undercover reporter in Brook House during the ‘relevant period’, and broadcast on the BBC Panorama Programme ‘Undercover: Britain’s Immigration Secrets’ which aired on September 4, 2017. 

Background

Callum Tulley was employed by Brook House from January 2015 as a detention custody officer. In this role he witnessed the disturbing culture and conduct of employees there and raised these concerns by email to the BBC Panorama team in January 2016. After a 14 – month period providing intelligence and completing specialist training, Tulley began to secretly film 109 hours of footage over a three-month period – the contents of which exposed the degrading treatment of detainees by employees. 


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Unorthodox Covid Views and Medical Regulation – Richard Smith

7 December 2021 by

White v General Medical Council [2021] EWHC 3286 (Admin) (03 December 2021)

A case in which the High Court reminds the regulator of requirements for imposing curbs on free speech.

Dr Samuel White is a GP. Earlier this year he posted a seven minute video on Instagram explaining that he had resigned from his job because, he said, he could no longer stomach the lies surrounding the NHS approach to the pandemic and because medical professionals were having their hands tied behind their backs in treating patients. He stated that he was being prevented from using treatments that had been established as being effective both as prophylaxis and treatment for Covid-19, naming hydroxychloroquine, budesonide inhalers and ivermectin, which he described as safe and proven. He raised concerns about the safety of the Covid-19 vaccine and claimed that 99% of people who contract the virus survive, with the only fatalities in those with multiple medical problems. He stated that masks do absolutely nothing. He invited his viewers to do their own research, but referred to a number of websites which supported his view. 

A complaint was made to the General Medical Council, which commenced an investigation into his fitness to practise as a doctor. The GMC referred his case to an Interim Orders Tribunal on the basis that his practise should be restricted pending investigation and the conclusion of the case. The role of an IOT is not to find facts, but to conduct a risk assessment based on the information before them and determine whether an interim order is necessary to protect patients or otherwise in the public interest.


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Safeguards for suspects and accused persons in criminal proceedings in the EU – Jodie Blackstock

24 August 2021 by

The UK’s exit from the European Union raises many questions for continuing cross-border arrangements and the legal proceedings that follow. This is no less the case in the area of police and judicial cooperation. The Trade and Cooperation Agreement (TCA) has governed all arrangements since January 2021. Since people accused of crime will continue to travel, what does this mean for an individual’s ability to challenge requests from EU member states to UK authorities? These arguments are well known in the UK: how can we return people to Poland for prosecution of such minor misdemeanours as dessert theft? Should we be returning people to Lithuania given the appalling prison conditions?

Part 3 TCA introduced a new “surrender” arrangement with the EU to replace the European Arrest Warrant (EAW). It also replaced the other measures that in 2014 the UK concluded were necessary for law enforcement when it exercised the Protocol 36 to the Lisbon Treaty option to depart from police and judicial cooperation in criminal matters, and then opted back into 35. Alongside the EAW, these included the European investigation order, supervision order, instrument on transfer of prisoners and various others. These measures resulted from the mutual recognition project that sought to make law enforcement speedier and more effective. Part 3 TCA now provides for cooperation with Europol and Eurojust, operational information exchange and mutual assistance. 


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Challenge to Criminal Injuries Compensation Scheme dismissed by Supreme Court

16 August 2021 by

Inside the Supreme Court

A and B v Criminal Injuries Compensation Authority and another [2021] UKSC 27

On appeal from [2018] EWCA Civ 1534

The claimants in the case were victims of human trafficking with unspent convictions in Lithuania. The Criminal Injuries Compensation Scheme (CICS) provides compensation to victims of crime, apart from where they have unspent criminal convictions (“the exclusionary rule”). The question for the Supreme Court was whether the exclusionary rule breached the claimants’ rights under Articles 4 and 14 of the European Convention on Human Rights. The Court found that the rule did not breach these rights.

Factual background

The CICS is a statutory scheme established by the Secretary of State for Justice which permits compensation to be given to a person “if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence”. But this is subject to the exclusionary rule for a person with an unspent conviction for an offence with a custodial sentence.

The appellants, A and B, were Lithuanian nationals and twin brothers. They were convicted of burglary and theft respectively in 2010 and 2011. They were then trafficked to the United Kingdom in 2013, where they were abused and subjected to labour exploitation. The traffickers were convicted for these criminal offences in January 2016.

On 16 June 2016, the appellants applied for compensation under the CICS. A’s conviction for burglary only became spent in June 2020, while B’s conviction for theft became spent on 11 November 2016. Because at the time of their application to the CICS they both had unspent convictions, they were disqualified from receiving compensation. They brought a claim for judicial review against the Criminal Injuries Compensation Authority (CICA) and the Secretary of State for Justice.


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Compulsory Vaccination for Care Home Workers – legislation coming into force in November

3 August 2021 by

The government has passed legislation compelling care homes to ensure almost all workers are vaccinated against Covid-19. It comes into force on 11 November 2021, and applies to England only.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 state that a care home provider must ensure that nobody enters care homes unless they fall into one of the identified exceptions.

The main ones are:-care home residents, friends and relatives of care home residents, emergency help providers (eg ambulance, emergency plumber) and children under 18.

If someone does not fall into one of the identified categories, the care home must not allow them entry unless they provide evidence that:- 

they have completed a course of an approved Covid vaccine;
or, for clinical reasons they cannot be vaccinated.

Some points to note: only those who cannot be vaccinated for clinical reasons are exempt. Religious and philosophical beliefs do not suffice. As well as workers, the Regulations ban a large variety of tradespeople who might need to visit a care home.

There is a 16 week period before the Regulations come into force; this is to allow care homes to encourage its workers to get vaccinated, warn of the consequences if they do not, and arrange alternative staffing to replace those who refuse. Compulsory vaccination is one of the three topics.

There will be a Zoom presentation on 6 September 2021 by Daniel Barnett of During it, you will learn:

– the seven common objections staff have to vaccination, and how to overcome them,
– whether dismissal for refusal to vaccinate because of health concerns is discriminatory
– whether dismissal for refusal to vaccinate because of pregnancy or breastfeeding is discrimination
– whether dismissal for refusal to vaccinate because of a anti-vax, or ethical vegan, or similar philopsophical belief is discrimination
– whether employers can compel existing employees and job applicants to tell you if they’ve been vaccinated
– the nine ‘reasonable’ steps for all employers under the Management of Health & Safety at Work Regulations 1999
– more about compulsory vaccination at care homes, and the steps care homes need to take to ensure any dismissals are fair

We have reposted this report with the kind permission of its author, Daniel Barnett. Daniel is an employment law barrister at Outer Temple Chambers in London, a presenter on LBC Radio, and a leading speaker on the national and international lecture circuit.

Supreme Court dismisses solitary confinement appeal

22 July 2021 by

R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28

The Supreme Court has unanimously dismissed an appeal which considered whether treatment throughout a 55 day period in solitary confinement of a then 15-year-old appellant in Feltham Young Offenders’ Institution constituted a violation of Article 3 of the European Convention on Human Rights.

Facts

The case concerned the treatment of the Claimant, AB, whilst he was detained at Feltham Young Offenders’ Institution (FYOI) at the age of 15, between the period of 10th December 2017 and 2nd February 2017. AB had been remanded in custody at FYOI whilst awaiting sentence for indecent exposure and sexual assault. The pre-sentence report concluded that his risk of dangerousness was high, as was his risk of causing serious harm.

Throughout the above period at FYOI, AB had been placed under a “single-unlock” system, whereby he could not leave his cell when any other detainees were out of their cells, apart from some time in “three-officer unlock” which involved three officers being present whenever he left his cell. It was undisputed that he was placed under this regime for his own safety, as well as for the protection of others.

AB appealed to the Supreme Court to decide two questions. The first: whether the solitary confinement of persons under 18 automatically constitutes a violation of article 3 of the European Convention on Human Rights (“the Convention”). The second: if not, whether there is a universal test for the compatibility of solitary confinement of children, namely that “exceptional” circumstances must determine the treatment as “strictly necessary”.


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