Category: BLOG POSTS
25 April 2012 by Rachit Buch
Royal Brompton and Harefield NHS Foundation Trust, R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 – Read judgment.
Marina Wheeler of 1 Crown Office Row appeared for the successful Appellant in this case. She is not the author of this post
When is reorganisation of healthcare services unlawful? When can consultation, rather than a final decision, successfully be challenged? These were the questions dealt with by the Court of Appeal in relation to the reconfiguration of paediatric heart surgery services. The Bristol Royal Infirmary scandal had left these services in need of change; the Court of Appeal found that there was nothing unlawful in the consultation process resulting in the Royal Brompton failing to be chosen as one of the two specialist centres in London.
Following the failures in Bristol that were subject to a public inquiry in 1998, there have been a number of reports on paediatric heart surgical care. This is an extremely specialised area of medicine. The recent trend has been for such specialist areas (another example is major trauma care) to become concentrated in fewer hospitals: the principle being that when professionals come into contact with such work more regularly they become better at it; spreading such cases wide and thin results in poor outcomes.
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24 April 2012 by David Hart KC
In his thought-provoking Guardian post Climate change is a human rights issue – and that’s how we can solve it, Olivier De Schutter, UN Special Rapporteur on the right to food, makes a case for human rights playing a radical new part in our response to climate change.
His argument involves a number of propositions:
(i) global climate talks have reached an impasse;
- yes, indeed, and from today’s perspective, there is no obvious way through that impasse;
(ii) carbon emissions cannot possibly be stalled or reversed until our politicians recognise that continued economic growth is inconsistent with a long-term climate change strategy;
- many would agree that we can spend a bit of time deck-chair re-arranging or limiting increases in emissions, but the time will come when the world economies have to stop growing;
(iii) if that direction is not going to come from our politicians, then
those political processes are clearly not fit for purpose.
Does this mean that democracy has failed, and must be sacrificed for authoritarian solutions? The solution may in fact be the polar opposite. A system where failing governance procedures are forced to think long-term does not necessarily require anti-democratic “climate tzars”. Instead, this revolution can be hyper-democratic and guided by human rights.
Climate change represents an enormous threat to a whole host of human rights: the right to food, the right to water and sanitation, the right to development. There is therefore huge scope for human rights courts and non-judicial human rights bodies to treat climate change as the immediate threat to human rights that it is. Such bodies could therefore take government policy to task when it is too short-sighted, too unambitious, or too narrowly focused on its own constituents at the expense of those elsewhere. Fossil fuel mining, deforestation, the disturbance of carbon sinks, and the degradation of the oceans are developments that can be blocked on human rights grounds.
Whoa, slow down!
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24 April 2012 by Rosalind English
London Christian Radio Ltd and Anor v Radio Advertising Clearance Centre (RACC) and Secretary of State for Culture – read judgment
The High Court has upheld the refusal of the broadcasting regulator to clear an advertisement for transmission on the grounds that it offended the prohibition on political advertising.
This restriction, said Silber J, was a necessary one for the purposes of Article 10(2) of the European Convention. The purpose of the ban on political advertising was to protect the public from the potential mischief of partial political advertising, and the views of the advertiser, as to whether an advertisement was political, were irrelevant.
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23 April 2012 by Karwan Eskerie
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment
The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.
Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.
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22 April 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
In the news
This week saw the final Brighton Declaration, containing the Council of Europe states’ proposals for reform of the European Court of Human Rights, published, in extremely important news for the future of the Court. Other hot topics this week include perennial gems such as the deportation of terrorist suspects, the right to liberty, fears over the democratic legitimacy of judicial “lawmaking” and cameras in court.
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22 April 2012 by hrupdateadmin
The Brighton Declaration is the latest Declaration (see previously the Interlaken and Izmir Declarations) on the future (and reform) of the European Court of Human Rights made on behalf of the 47 member States to the Council of Europe, the parent organisation for the ECHR. Brighton was the venue, the United Kingdom having taken up the six month Chairmanship of the Committee of Ministers of the Council of Europe late last year.
The workload problem
So what was agreed? A nine page, highly influential Declaration, building on Interlaken and Izmir, which is primarily concerned with trying to make the Court system sustainable, since it is overwhelmed by the number of applications reaching it. Over 150,000 applications are currently pending before the Court.
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20 April 2012 by Wessen Jazrawi
Who should decide questions of human rights, Parliament or the courts? Is there a democratic deficit in human rights? If so, how do we go about addressing it? These are just some of the many questions asked at the conference hosted by the Arts and Humanities Council on Redressing the Democratic Deficit in Human Rights.
This conference took place on 17 and 18 April and was timed to coincide with the Brighton Conference. It was also timed to coincide with the launch of “Parliament and Human Rights”, research undertaken by Paul Yowell and Hayley Hooper, both of Oxford, and Murray Hunt, legal advisor to the Joint Committee on Human Rights (“JCHR”).
The conference featured a variety of eminent speakers and some lively debate took place over the two days. David Feldman, first legal advisor to the JCHR, kicked off events yesterday with the quote (I paraphrase): “there is nothing so dangerous in Parliament as when everyone agrees”, indicating that this is what took place following 9/11, and it was due to this that the JCHR’s mission became clear.
by Wessen Jazrawi
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19 April 2012 by Guest Contributor
The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?
The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.
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18 April 2012 by David Hart KC
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.
All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.
This case is a good example of the latter.
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18 April 2012 by Adam Wagner
In its short two-year life, the UK Human Rights Blog has forged a prominent role at the forefront of comment and opinion on all aspects of Human Rights law, and as I blogged recently, we have now surpassed 1,000,000 hits.
To celebrate this success we are holding a seminar on the evening of Wednesday 25 April 2012. I will be analysing the impact of the Brighton Conference on the future of the European Court of Human Rights and there will be presentations from other 1 Crown Office Row barristers providing an update on Immigration Law and assessing whether the Strasbourg Courts have gone too far in relation to Article 8.
CPD has been applied for and debate, drinks and snacks will of course follow.
There are still a few places remaining to attend this event. If you are currently practising within the field of human rights law and would like to attend please contact Charlotte Barrow, Marketing Executive at 1 Crown Office Row on charlotte.barrow@1cor.com stating your name and organisation. Places will be allocated on a first-come-first-served basis.
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18 April 2012 by Adam Wagner
As the last hurrah of its Chairmanship of the Council of Europe, beginning today the United Kingdom is hosting the High Level Conference on the Future of the European Court of Human Rights in Brighton. As delegates settle into their Eurostar seats on the way over, here are a few useful tips:
1. If you have forgotten sun cream, don’t worry! The weather forecast is terrible.
2. All of the important documents are on the Conference website, including the Conference Programme and the declarations from the last two such conferences: Izmir (2011) and Interlaken (2010). There is also a CoE press release. In case you need to refresh yourself on the CoE itself, the BBC has this useful profile.
3. The most important document is the draft Declaration which you are being asked to approve. The document has been the subject of frantic negotiations and you will no doubt receive an up to date version. In the meantime, here is a slightly out-of-date version which even has useful track changes to show what has changed since the UK’s first draft. The somewhat ugly buzz-word for the Conference will be subsidiarity.
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17 April 2012 by Rosalind English
A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety. Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact.
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17 April 2012 by Rosalind English
R (on the application of Ian Shutt and John Tetley v Secretary of State for Justice (2012) [2012] EWHC 851 (Admin) – read judgment
Hard on the heels of MP comes another case on the unlawful restriction of discretion with regard to prison rules (see my post on that decision). This case concerned national policy relating to prison incentives and the earned privileges scheme (IEP). The scheme gave enhanced status to convicted sex offenders who had been assessed as unready for a sexual offences training programme.
Background
Both men were serving substantial determinate sentences in the Isle of Wight after having been convicted of serious sexual offences against children. Despite the fact that they had been assessed as suitable for the training programme under the national IEP policy, there was a points system under the local prison policy which meant that convicted sex offenders such as the claimants were considered unready for the programme by reason of continued denial of their offences. As the claimants refused to admit their guilt, they could not accrue enough points to attain enhanced status. The national IEP policy stated that unreadiness for such a programme “could” bar a prisoner from obtaining enhanced status. The issue was whether that amounted to a blanket ban, and if so, whether it was unlawful.
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17 April 2012 by Guest Contributor
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the European Court of Human Rights (ECtHR) is taking an approach that looks like one of appeasement of certain signatory states.
Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconcilable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
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16 April 2012 by Rosalind English
MP, R(on the application of) v the Secretary of State for Justice [2012] EWHC 214 (Admin) – read judgment
The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.
Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date.
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