By: Rosalind English
15 November 2011 by Rosalind English
... is at the core of Jonathan Sumption QC’s FA Mann Lecture. His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.
Drawing on his not inconsiderable command of history he sets out to explain that the immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, “aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore.” We fool ourselves if we still view this as a power-grab by ambitious ministers and officials. The truth is that a powerful executive is “inherent in the democratic character of the modern state.”
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10 November 2011 by Rosalind English
S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment
The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12. The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.
This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006). Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life.
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8 November 2011 by Rosalind English
David Thomas Howarth v Commissioner of Police of Police of the Metropolis [2011] EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
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8 November 2011 by Rosalind English
ABB & Ors v Milton Keynes Council [2011] EWHC 2745 (QB)- read judgment
Justin Levinson of 1 Crown Office Row acted for the claimants in this case. He is not the author of this post.
This case concerned the entitlement to compensation for the years of abuse the claimants, three brothers a sister, the youngest, who had suffered at the hands of their father. The older claimants had both suffered regular abuse from an early age until late teens. The third claimant escaped the prolonged abuse suffered by his brothers. The fourth claimant, who was conceived after the defendant social services became aware of the situation, nevertheless endured abuse for five or six years.
The father’s abuse of the older boys came to light in 1992 when the first three claimants were placed on the child protection register and the father moved out of the family home. However charges against him were subsequently dropped and he returned home. The names were removed from the register but the abuse continued.
The facts were not disputed but the principal issue between the parties was that of the quality of social work practice adopted by the defendants’ employees and whether this fell below a reasonable standard.
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1 November 2011 by Rosalind English
On the eve of Lord Justice Leveson’s inquiry into phone hacking and the ethics of journalism, the British Institute of Human Rights (BIHR) with 1 Crown Office Row hosted a roundtable discussion to examine how to reconcile the right to privacy with freedom of expression. Stephen Bowen, Director of BIHR and Philip Havers QC, 1COR’s Head of Chambers, led the discussion, which followed “Chatham House rules” so the report below is not attributed to specific attendees, although we can mention that a number of key figures in this debate were present, including Chris Bryant MP, Nuala Cosgrove (director of Ofcom), “Hacked off” political scientist Dr Evan Harris and philosopher and cross bencher Baroness Onora O’Neill. Journalist and law commentator Joshua Rozenberg chaired the discussion.
There has been so much steaming-off and ink-spilling on this issue that it is unimaginable that anyone can find anything new to say that might advance the arguments for and against a law on privacy; nevertheless this discussion moved apace with high quality contributions and fresh analyses that cast welcome new light on a very old debate.
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24 October 2011 by Rosalind English
N.A. (Iran) v Secretary of State for the Home Department [2011] EWCA Civ 1172 – read judgment
This application raises a significant issue about the treatment of vulnerable asylum-seekers and their children following certification of their claim as clearly unfounded.
It concerned the interface between state authorities’ obligations under the EU system of determining responsibility for examining asylum claims under the Dublin II Regulation (2003/34/EC), on the one hand, and their obligations under the European Convention of Human Rights on the other. Although Convention rights theoretically form part of the “principles” of EU law, this case is a neat illustration of how the states’ duties under the two regimes are subtly different, and how attentive the courts have to be to the individual circumstances of the case.
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18 October 2011 by Rosalind English
Independent Schools Council and the Charity Commission for England and Wales (Defendant), National Council for Voluntary Organisations and the Education Review Group (Interveners); Attorney General v Charity Commissioner for England and Wales (Referrer) and the Independent Schools Council (Respondents) [2011] UKUT 421 (TCC) – read judgment
It is not for the Charity Commission or the courts to impose on trustees of a school their own idea of what is for the “public benefit” so as to qualify for charitable status, the Upper Tribunal has ruled. In a detailed assessment of the law on charitable status both before and after the Charities Act, the Tribunal has indicated that the Act has not introduced any legal requirement to act in a way prescribed by the Charity Commission or anyone else. Provided they run their charity to ensure that the poor are able to benefit in a way that is more than minimal or tokenistic, they should be free to make their own considered assessment of what is for the “public benefit” in the circumstances pertaining to their own institution.
The right to education played no role in these proceedings, which turned on the meaning of charitable status in the strict sense. But this case nevertheless has very real implications for the regulation of education in this country, mired as it is in the bitter controversy over state versus private education. This is still a weeping sore for which there is no salve. But the Tribunal’s firm steer towards autonomy at least puts paid to the efforts of the past government to micromanage schools behind the smokescreen of charity law.
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13 October 2011 by Rosalind English
R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.
The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.
The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country.
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7 October 2011 by Rosalind English
Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment
Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.
The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case, Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody.
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5 October 2011 by Rosalind English
Schrödinger would be rolling in his grave. The nation is abuzz with talk of a cat. A cat that is simultaneously there or not there. The speakers at yesterday’s seminar at Inner Temple hall on Strasbourg and the UK: Dialogue or Conflict, felt it incumbent to start each of their talks with a Cat Joke. But behind all this mirth about a supposedly “ridiculous” Article 8 decision, lie three serious points, some of which were touched on during the seminar though perhaps not with the detail they deserved.
First, it is not the cat that has toxified the debate about Article 8 and the vexed question of deportation. The right to respect under Article 8 is not only to family ties – however absurdly extended – but to private life itself. Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, (Niemietz v Germany (1992)). Therefore if a court wants to prevent the what it perceives as the unjust deportation of the individual before it, it has a much wider constellation of interests to turn to than the family circle, whether or not that involves companion animals. Some might even take the view that attachment to such an animal may evince a more genuine emotional tie than many that have been advanced to claim the protection of Article 8.
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3 October 2011 by Rosalind English
A niggle has broken into a very public row between the British government and the European Commission which may yet become a bare-knuckle fight – not over the Eurozone crisis or bailouts or anything in the headlines, but over the availability or not of certain classes of benefits to EU claimants who do not satisfy this country’s “right to reside” test.
British social welfare arrangments provide for a class of non-means tested benefits such as Child Benefit and Income-based Employment Allowance that are only available to people who have resided legally in the UK for five years. The European Commission has declared this fencing-off to be in breach of EU law since it indirectly discriminates non-UK nationals coming from other EU Member States. EU rules on the social security coordination (EC Regulation EC 883/2004) allow the UK to grant social benefits to those persons who habitually reside in the UK; this EU test is satisfied by those who have been resident in the UK for two years or less. It is a common law test – a question of fact on the balance of probabilities, to be determined by looking at all the circumstances in each case. But those who pass this latter qualification can only claim means-tested benefits.
Confusing? Yes, and it gets worse.
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30 September 2011 by Rosalind English
We posted earlier on the Court of Protection’s refusal to declare that doctors could lawfully discontinue and withhold all life-sustaining treatment from a patient in a minimally conscious state (MCS) – “just above” a vegetative state (VS), which itself is slightly higher than a coma – read judgment.
The message underlying this ruling is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will. The Mental Capacity Act is remorseless, and courts will no longer come to the aid of those of us optimistic enough to think “it will never happen”.
We do not tend to think specifically about ending up in state of total dependency on medical support and therefore there is very little likelihood of any significant section of the population making a formal advance decision in accordance with the Act. On the other hand, how many of us have said, as patient M said in this case, that if such a situation were to arise, we would want to “go quickly”? [para 230]
Such generalities however are to no effect. Despite the universal human instinct to live in denial of contingent disasters, the court refused to give due weight to M’s previously expressed wish not to live a life dependent on others, because those these statements were not “specifically directed” at the consequences of withdrawing artificial nutrition and hydration (ANH) when conscious. Baker J could not consider those statements as a clear indication some eight years on from the onset of her illness, of what M would now want to happen.
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29 September 2011 by Rosalind English
M and others v NHS Primary Healthcare Trust – read judgment
For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”.
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28 September 2011 by Rosalind English
C v United Kingdom Application no. 37334/08 – read judgment
The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.
This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy. Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence; even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment.
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27 September 2011 by Rosalind English
Oao Neftyanay Kopaniya Yukos v Russia (Application no. 14902/04) – read judgment
The collapse of the Russian oil giant Yukos following enforcement proceedings for multi-billion tax evasion has not prevented the ghost of the now-defunct company appearing in Strasbourg as a “victim” of the Convention. After majority shareholder Mikhail Khodorkovsky was prosecuted and imprisoned for fraud, the assets of Yukos were seized and the company was declared insolvent in 2006, and liquidated a year later. Nevertheless, the Strasbourg Court accepted its application because the issues raised by the case “transcended the person and the interests” of the applicant company. Striking out such claims, said the Court,
would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality…
The case raises interesting questions with regard to the policing and punishment of tax evasion, a matter which Strasbourg generally prefers to leave to national authorities. Whilst the wide margin of appreciation generally granted to a national governments cannot be boundless, there glimmers behind this ruling a reflection of troubled water between the Council of Europe and its largest constituent. By admitting and upholding some of the complaints, Strasbourg signals its readiness to castigate failures in due process. But the rejection of the more fundamental charge of political motivation, though not exactly an olive branch, is proffered at least as a sign of non-aggression.
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... is at the core of Jonathan Sumption QC’s FA Mann Lecture. His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.
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