Category: In the news

Hospital closures and the rule of law

8 November 2013 by David Hart KC

Trust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

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Sexual liaisons by undercover police officers could be authorised by RIPA

6 November 2013 by Rosalind English

AJA and others v Commissioner of Police for the Metropolis  [2013] EWCA Civ 1342 – read judgment

The words “personal or other relationship” in the section 26(8)(a) Regulation of Investigatory Powers Act 2000 included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who had allegedly had sexual relationships with them

There were two groups of claimants in this case. The first three were represented by Birnberg Pierce & Partners (referred to as “the Birnberg claimants”). The second three were represented by Tuckers (referred to as “the Tuckers claimants”). Both groups alleged that they had suffered violations of their rights under Articles 3 and 5 by the officers for whom the respondents were responsible and that such conduct was contrary to the Human Rights Act 1998 s.6(1). They appealed against a decision that the Investigatory Powers Tribunal had jurisdiction to decide their human rights claims and that High Court proceedings should be stayed pending the IPT’s determination.
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Limiting the scope of injunctions in family cases – Hugh Tomlinson QC

5 November 2013 by Guest Contributor

Re J (A Child) ([2013] EWHC 2694 (Fam) – read judgment

In this case  the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. He emphasised that the only proper purpose of such an injunction was to protect the child and refused to make an order in the wide terms sought by the Council. As a result, he allowed the publication of video footage and photographs of a baby being removed from its parents.
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Government Losses, HRA Repeal & Secular Courts – The Human Rights Roundup

4 November 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular great bright firework display of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.

Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government.  Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts.  Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.

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Al Quaida list and the use of prerogative powers

1 November 2013 by Rosalind English

Youssef v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 1302, 29 October 2013 – read judgment

There was nothing unlawful in the Foreign Secretary’s decision to allow a UK resident to be added to the UN’s Consolidated List of members of Al-Quaida and its associates .

This was an appeal against the Administrative Court’s dismissal of the appellant’s claim for judicial review of the secretary of state’s decision to allow him to be added to a list of persons subject to sanctions under UN Security Council Resolution 1617. This Resolution required UN member states to freeze the assets on those named on the Consolidated List of members of Al-Qaida and its associates. The relevant UN committee was asked to add the name of the appellant, an Egyptian national resident in the UK, to the list. The secretary of state placed a hold on the appellant’s designation so the UK could consider whether he met the criteria for designation. The Foreign Secretary subsequently accepted that he did meet the criteria and released the hold, which meant that he was added to the list. Once a designation is made, it lasts until all members of the Security Council can be persuaded that it should be lifted.

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The difference between public and private law – on a beach near me

1 November 2013 by David Hart KC

More naturism and the law, in the light of Mr Gough’s travails: see my post of yesterday.

For many years, the beautiful beach upon which Ms Paltrow was seen in Shakespeare in Love (my pic) has been a haven for naturists, even on the chilliest of days when the wind whips in from the north-east. However, things have changed this year. Initially, naturism was banned from the beach completely. The ban has now been lifted for the area of sand below the mean high water mark, but remains in place for the sand dunes.

How so?

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EU Balance of Competences Fundamental Rights Review

31 October 2013 by Adam Wagner

The Ministry of Justice is calling for evidence on the Review of the Balance of Competences between the United Kingdom and the European Union, specifically relating to fundamental rights. The consultation document is here and main website here.

The deadline for responses is 13 January 2014, but if you want to take part in one of the four discussion groups (three in London, one in Edinburgh), you need to email by tomorrow – all details below.

And don’t let the obscure-sounding title put you off. This review is potentially very important. Just look how broad question 1 is: 
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Freedom of expression – nakedness in a public place

31 October 2013 by David Hart KC

Gough v. Director of Public Prosecution [2013] EWHC 3267 – read judgment

Mr Gough wishes to walk up and down the UK naked. Others do not approve of this, so his progress has been somewhat stop-start. This appeal concerns a brief and inglorious autumnal outing in Halifax. He was released from the local nick at 11.30 am on 25 October 2012,  wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. “He was otherwise naked and his genitalia were on plain view.” He then walked through Halifax town centre for about 15 minutes.

In the words of the judgment, he received a “mixed reaction” from its inhabitants.  At least one female member of the public veered out of his way. Evidence from two women was to the effect that they were “alarmed and distressed” and “disgusted” at seeing him naked. One of the women was with a number of children at least one of whom, 12 years old, she reported as “shocked and disgusted”. The district judge found that it caused one of the women to feel at risk, and, further, based on the evidence, that it caused alarm or distress.

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Petition to Strasbourg stops the Spanish bulldozers

31 October 2013 by Rosalind English

This week’s newspapers have highlighted the plight of the thousands of British homeowners who face demolition orders over their Spanish properties because they have been built without proper planning permission.  Permits granted by town mayors during the property boom turn out not to be worth the paper they were written on, and since the regional authorities have overturned most of these permits, the buildings are condemned to destruction. Compensation from the developers and public officials who made these transactions possible is not forthcoming; as the Times leader points out

In a few cases, the courts have ordered that developers or town halls should compensate those who have lost their homes. Yet the former invariably opt for bankruptcy, instead, and even the latter seem markedly reluctant to pay out. Owners, often now back in Britain, face daunting and bewildering battles in foreign courts. (Tuesday 29 October, behind paywall)

Now one couple, Terry and Christine Haycock, are testing how far the Strasbourg Court will go to protect their property rights in this fracas  (which would be under Article 1 Protocol 1).
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Court of Appeal broadcasters must learn the Supreme Court lessons

31 October 2013 by Adam Wagner

Stefan Rousseau/PA Wire

TV cameras are recording Court of Appeal hearings from today. The BBC, ITN, Sky News and the Press Association are cooperating on the project, and have hired an in-court video-journalist who will recommend the most interesting cases.

This is great news. Let in the light. The more that the public can see what is going on in their courts, the better. The courts are a bewildering place for the uninitiated and especially for those who cannot afford to pay someone to explain what is going on. This is still a relatively small advance – only appeals will be broadcast, not trials, so the public is unlikely to see any cross examination of witnesses. But hopefully it will be enough to increase public understanding of and interest in the courts.

But a word of warning. This initiative will only succeed if it is implemented in the right way. And, there are important lessons here from the Supreme Court’s ongoing broadcasting experiment.

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Wind farms, birds, and that pesky thing called the rule of law

28 October 2013 by David Hart KC

Sustainable Shetland, Re Judicial Review, 24 September 2013, Lady Clark of Calton  read judgment

The current storms brought down a turbine in Teignmouth: see here for good pics of this and other mayhem. And the rule of law recently brought down a massive wind farm proposed for Shetland. The Scottish Ministers had waved aside a request for a public inquiry, and ended up drafting reasons which ignored the obligations in the Wild Birds Directive in respect of this bird – the whimbrel. Lady Clark quashed the consent on this ground, and also decided that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which she concluded was a pre-condition for such an application. 

And there is a very good chance that the NGO which brought this challenge would not be entitled to do so if Mr Grayling gets his way, because it might well not have been held to have “standing”. Such a change he would regard as “firmly in the national interest”: see my post of last week on proposed reforms to judicial review rules. There are, to say the least, two sides to that argument about national interest, hence the importance of responding to his consultation paper, with its closing date of 1 November 2013.

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Human rights – coming to a private care home near you?

28 October 2013 by Kate Beattie

Winterbourne View

Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.

The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.

It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.

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Two events and an evidence session

27 October 2013 by Adam Wagner

Just a quick post to tell you about three things I have coming up which you might be interested in:

1. This Wednesday 30 October from 10:30am I am giving evidence to the Joint Select Committee on the Draft Voting Eligibility (Prisoners) Bill, along with Joshua Rozenberg – full details here. The hearing will be broadcast live online. I will be talking about how media reporting and public perceptions  of the European Court of Human Rights has affected the prisoner voting debate.

2. Then, also on Wed 30 Oct, in the evening, I’m taking part in a panel debate with BPP Fresh Perspectives on Law, which will explore the aftermath of the revelations about the NSA and GCHQ’s communications surveillance programmes. Also speaking: Paul Bernal, Lecturer in Internet and Media Law, University of East Angli; Ben Hayes, Statewatch and Alex Lawson, Lecturer, BPP Law School. Places are free but you have to sign up here.

3. Finally, on Wednesday 20 November I am joining lots of excellent lawyers in a charity mentoring event, raising money for Anna Verrico’s cancer treatment. Tickets are £10, a great cause, all details here.

And that is all.

Disability detention, Immigration Issues and Court TV – The Human Rights Roundup

27 October 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular hurtling freight train of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week, immigration, in various forms  was hotly discussed and some notable cases have been or are soon to be decided in the realm of disability rights. And not everyone is happy about the decision to televise Court of Appeal cases.

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Another hall of mirrors human rights story from the Telegraph

27 October 2013 by Adam Wagner

Yesterday saw another poor piece of human rights reporting from the Telegraph, again from Home Affairs Correspondent David Barrett. Strasbourg human rights court threatens key counter-terrorism powers. It is a typical piece of hall-of-mirrors reporting; all of the basic elements are there but presented in a distorted and inaccurate way.

The piece is about the case of Sabure Malik, a British investment banker who was stopped by police in 2010 at Heathrow on his way back from an organised package tour to undertake the Hajj. Full details of his case, which is supported by Liberty, are in the Euoprean Court of Human Rights’ admissibility decision here. It was granted permission to proceed in May 2013, well before the David Miranda controversy which took place in August.

I’ll take this shortly.

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