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Welcome back to the UK Human Rights Roundup, your regular chocolate selection gift box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week, the Government announced plans to curb Article 8 of the ECHR, Grayling continues to cause controversy with his reforms of both the Criminal Justice System and of judicial review, and Qatada may soon be leaving us for pastures new.
PC (by her litigation friend the Official Solicitor)[1] and NC [2] v City of York Council [2013] EWCA Civ 478 – read judgment
It may seem strange that the same individual, with learning difficulties, can be considered to have capacity to marry, but not the capacity to decide whether to live with the person they have espoused. What, in essence, is marriage, that puts it on such a different footing to informal cohabitation?
The question arose because the woman in question (PC) had married NC after he had been convicted and sentenced for serious sexual offences. She had briefly cohabited with the him before he was convicted and married him in 2006 while he was in prison. He was due for release on licence in 2012. It was common ground that he posed a serious risk to PC in her capacity as a cohabiting wife. The local authority obtained a declaration from the Court of Protection ([2013] Med LR 26) that although PC had had capacity to marry and to understand the obligations of marriage, she did not have the capacity to decide whether to cohabit with NC upon his release. What Hedley J said was this:
She is undoubtedly within section 2(1) [of the Mental Capacity Act] requirements of impairment. Applying the section 3(1) test I am not satisfied that she is able to understand the potential risk that NC presents to her and that she is unable to weigh the information underpinning the potential risk so as to determine whether or not such a risk either exists or should be run, and should, therefore, be part of her decision to resume cohabitation. Continue reading →
Holland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013 – read judgment
In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.
UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information.
This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them. UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.
Welcome back to the UK Human Rights Roundup, your regular assortment of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Not a particularly noisy week on the human rights front, but some interesting summaries and analyses. The House of Commons Library has compiled a summary of UK cases before Strasbourg since 1975, as well as on the prisoner voting issue. Some commentary on the issue of secret justice, in particular the role of the independent reviewer of terrorism legislation, and the powers of the court of protection in contempt proceedings.
by Daniel Isenberg
In the News
Legal Aid
The Legal Aid cuts are set to continue – see Adam Wagner’s post on the latest consultation, which closes on 4 June 2013. As with previous consultations, we will be collating responses so please send us yours (to email click here).
“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013.
The reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to
removing legal aid for prisoners challenging the way they are treated in prison,
reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
introducing price competition into the criminal legal aid market,
reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
reducing fees to experts in civil, family and criminal cases by 20%.
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here
The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions.
The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.
The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.
The Supreme Court has taken the UK’s lack of compliance with EU legislation, Directive 2008/50 (limiting the amount of nitrogen dioxide in air) much more seriously than the courts below. It has made a declaration that the UK is in breach and has referred questions of interpretation concerning the Directive and remedies to the CJEU.
The UK has been in breach of Article 13 the Directive since 1 January 2010, because at that date 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and, given the admission, the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings.
This seemed to me like a cop-out – it is for the Commission and the courts to enforce directives, as I suggested in my previous posts (e.g. here) on this case.
Welcome back to the UK Human Rights Roundup, your regular potpourri of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week, in order to deport Abu Qatada, there have been mumblings of a temporary departure from the ECHR. Furthermore, Justice Secretary Chris Grayling’s legal services reforms lead to a strike in the North, and the recent ECHR decision to allow the UK’s ban on political advertising continues to generate discourse.
Y and Z (Children), 25 April 2013 [2013] EWHC 953 (Fam) – read judgment
Having children is a lottery. No judge or court in the land would sanction the regulation of childbearing, however feckless the parents, unsuitable the conditions for childrearing, or unpromising the genetic inheritance.
Adoption on the other hand is stringently regulated, set about with obstacles for prospective parents, and strictly scrutinised by an army of authorities backed up by specialist family courts and a battery of laws, statutory instruments and guidance papers. Usually the filtering is in one direction only: the suitability of the parents to the child or children up for adoption. But sometimes it goes the other way, and this case raises the fascinating and somewhat futuristic question of whether children’s chance of finding a suitable home might be increased by genetic testing.
The circumstances were somewhat exceptional here, since the local authority had ascertained from the biological father of the two young boys in question that they might have a chance of inheriting a rare genetic disorder of the central nervous system. Huntington’s Chorea is caused by a single gene mutation on chromosome IV and causes damage of the nerve cells and areas of the brain which in due course leads to severe physical, mental and emotional deterioration. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease. Continue reading →
The Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.
Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?
What is the test the Court should apply in deciding whether an application is ‘totally without merit’? The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’. A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.
This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.
The Supreme Court has produced a rather excellent short YouTube video about what it does. Look out for interviews with Justices, a funky 3D representation of the UK court system, a bit of court action and of course, cheesy muzak.
Regular readers will know I am a big fan of the Supreme Court’s efforts to be accessible to the public, which stand in stark contrast to the almost non-existent efforts of the rest of the UK justice system. You can find an article about the video by the court’s Chief Executive here and one reviewing the court’s innovations here.
Lane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD
In Italo Calvino’s charming short story “The Baron in the Trees” the twelve year old son of an aristocratic family escapes the stultifications of home decorum by climbing up a tree, never to come down again. He literally makes his home in the treetops of his vast family estate.
So perhaps we shouldn’t quarrel with the inclusion of a tree as part of the concept of home life for the purposes of Article 8. The further twist is that the felling of this particular tree took place on a property where the appellant lived without a tenancy. Nevertheless, this event still amounted to a potential interference with his right to a home under Article 8. Continue reading →
HL (A Minor) v Facebook Incorporated, The Northern Health and Social Care Trust, The Department of Justice for Northern Ireland and others [2013] NIQB 25 (1 March 2013) – read judgment
In this somewhat chaotic action, the Plaintiff sued ten defendants, in anonymised form by her father and next friend.
The Writ stated that the Plaintiff, aged 12, had been engaged in posting and uploading sexually suggestive and inappropriate photographic images of herself onto Facebook, and that she had been doing so vis-à-vis several different accounts with differing profile names. She had been involved with the social services from the age of 11. From July 2012 to January 2013 she was the subject of a Secure Accommodation Order. She currently resides in a specialised unit, is a grade below secure accommodation.
This was clearly a bid by the father to bring his wayward daughter under control by restricting her access to the internet.
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Welcome back to the UK Human Rights Roundup, your regular chocolate selection gift box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Welcome back to the UK Human Rights Roundup, your regular assortment of human rights news. The full list of links can be found 
“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of the Ministry of Justice’s new consultation document. As many readers will know, the Government is 
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment 
The Government abandoned its plans to repeal the ‘
Welcome back to the UK Human Rights Roundup, your regular potpourri of human rights news. The full list of links can be found 
The 
What is the test the Court should apply in deciding whether an application is ‘totally without merit’? The question is prompted by the 
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