Category: Public/Private


Seizure of passport actionable in law

9 June 2011 by

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment

 

1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.

This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty  owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.

The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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No right to enforce EU air pollution law: only a Crackerjack pencil

31 May 2011 by

More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.

Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General  thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed  – in English.

The problem arose because the EU made two directives which didn’t talk to each other.

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Privacy and paedophilia: who should get to know?

19 April 2011 by

H and L v A City Council [2011] EWCA Civ 403 – Read judgment

In a decision bound to stir up strong feelings, the Court of Appeal has found that disclosures made by a local authority to other organisations of a person’s conviction for a sex offence against a child and future disclosures proposed by the authority were unlawful. The Court considered that the “blanket” approach to disclosure, even though the person with the conviction and his partner did not work directly with children, was not proportionate to the risk posed. Further, making disclosures without first giving the persons concerned the opportunity to make representations on the matter was unfair.
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Purpose, policy and publication: Analysis of Lumba ruling

30 March 2011 by

Lumba v Secretary of State for the Home Deparment – a case of driving government policy further underground?

We have already reported on this appeal by three foreign nationals who have served sentences of imprisonment in this country (“FNPs”). They were detained pursuant to Schedule 3 of the Immigration Act 1971 and their challenge to the legality of this detention was successful. But the appeal was secured by a majority of 3 with strong dissenting opinions which merit close consideration here.

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Squaring equality with religion – Aidan O’Neill QC

29 March 2011 by

The relationship between the expression of religious beliefs and practice and equality law is a fraught one, and particular difficulty has been experienced in the matter of the application of the law outlawing discrimination.

Equality law, as currently interpreted, treats the six prohibited grounds of discrimination – age, disability, race, religion, sex (including transgender status) and sexual orientation – as being of equal weight and standing; there is no hierarchy among these grounds.

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Why be nice? Human rights under pressure

16 February 2011 by

The latest episode in the soap concerning our relationship with Strasbourg may end in a fizzle rather than a cliffhanger, but it has provoked some useful soul-searching about the vision of the good embodied in the ECHR, and its monopoly on the right to govern social life.

Derogating from the ECHR or even pulling out of Strasbourg altogether have ceased to be taboo subjects for discussion, but the fear seems to be that the consequence of such defection would mean reversion to selfish nationalism. Is this a bad thing?

This question is not as facetious as it seems and answering it is central to the long term maintenance of a set of principles by which states agree to live.
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Coalition cancellation of school building program was unlawful

11 February 2011 by

Luton Borough Council & Nottingham City Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) – Read judgment

The high court has ruled that the coalition government’s cancellation of Labour’s school building program in 6 areas was unlawful. The full background to the ruling can be found here.

Michael Gove, the education secretary, announced in July that the £55bn scheme was to be reduced significantly, prompting five councils to challenge the decision by way of judicial review.

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Was local authority responsible for harassment campaign against vulnerable adults?

25 November 2010 by

Application no. 32666/10 by X, Y & Z against the UK, lodged on 8 June 2010 – Read statement of facts

In a potentially landmark case, the European Court has been asked to determine the extent to which a local authority is under a duty prevent a breach of a person’s rights under Articles 3 (against inhuman and degrading treatment) and 8 (home and family life) in a case where two people with learning difficulties were violently harassed and threatened by a group of teenage youths.

The case concerns vulnerable adults who rely on social services. X and Y, who are married, both have learning difficulties. Z is the mother of X, and acted as a carer and advocate for both X and Y. X and Y lived in Hounslow Borough with Y’s two young children. Three local authority departments were involved with X and Y’s family, providing for their housing needs and allocating social workers for both the adults and children. Over a period from August 1999 until November 2000, X and Y were continually harassed and threatened by a group of teenage youths, who used the flat as a general ‘doss house’, dumping stolen goods, having sex and staying overnight.

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Anonymity ain’t here anymore for Take That’s Howard Donald

18 November 2010 by

Adakini Ntuli v Howard Donald [2010] EWCA Civ 1276 – Read judgment

Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”

‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.

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Courts reluctant to intervene over care for elderly and disabled

2 November 2010 by

Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment

The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.

In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.

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Goodbye to the public sector equality duty?

26 August 2010 by

The government is moving away from the wide-ranging public sector equality duty which was due to come into force in April 2011.

The Equalities Office has announced a consultation on the public sector equality duty imposed by the Equality Act 2010. Reading the consultation document, it is clear that the government intends to delegate the equalities duty to the general public, rather than imposing top-down standards from Whitehall:

We do not intend to prescribe how public bodies go about their business, but we will ensure that we put in place the right framework which empowers citizens to scrutinise the data and evidence on how their public services perform.

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Opening of secret evidence rules not limited to terrorism cases

22 July 2010 by

A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment

The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.

The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.

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Feature | DNA Database: another key human rights election issue

19 April 2010 by

DNA database impact on human rightsThe National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.

The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.

The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.

The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.

The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”

For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”

It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).

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