20 August 2013 by Rosalind English
NHS Trust v DE [2013] EWHC 2562 (Fam) 16 August 2013 – read judgment
For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.
The NHS Foundation Trust made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability. After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.
But things changed dramatically for the worst in 2009, when PQ became pregnant and had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.”
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19 August 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular menagerie of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
This week, judicial review continued to take a beating, the Home Office backed down over their ‘Go Home’ campaign and the legal implications behind the twitter threat debacle were considered. And, finally, the immigration and asylum tribunal launched a useful online search service.
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15 August 2013 by Rosalind English
Tabbakh, R (on the application of) v Staffordshire and West Midlands Probation Trust and others [2013] EWHC 2492 (Admin) – read judgment
The claimant, a Syrian national, was serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act. He was released automatically on licence on 23 June 2011, having served half his sentence. He took proceedings for judicial review contending that he had had no meaningful opportunity to participate in the process when his licence conditions were determined and that this constituted a breach of the procedural guarantees under Article 8 of the European Convention on Human Rights.
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14 August 2013 by Guest Contributor
The House of Commons Health Committee has published a report (PDF) following its inquiries into the Mental Health Act 2007. The MHA 2007 introduced several amendments to the Mental Health Act 1983 (MHA, as amended), some of which were very controversial at the time and continue to be so now. The Health Committee’s report follows post-legislative scrutiny of the legislation by its parent department.
The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself. Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.
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12 August 2013 by Rosalind English
Navarathnam v Secretary of State for the Home Department [2013] EWHC 2383 (QB) – read judgment
There was no unfairness in the Secretary of State for the Home Department refusing a Sri Lankan asylum seeker leave to remain in the United Kingdom, despite the ruling from the Strasbourg court that to return him would violate his rights under Article 3 of the European Convention on Human Rights 1950.
A decision had been made to grant the applicant six months discretionary leave to remain but he had absconded before it could be implemented, and by the time he resurfaced the secretary of state had been entitled to review the case and determine that the circumstances in Sri Lanka had changed so that he was no longer at risk if returned.
Factual Background
The claimant was a Sri Lankan national who had been subject to removal action after his asylum claim was refused. In 2008 the Strasbourg Court declared that the circumstances in Sri Lanka were such that his expulsion to Sri Lanka would violate the prohibition on torture and inhuman treatment under Article 3 (AA v United Kingdom). The UK authorities consequently confirmed that removal directions would not be applied to him, and stated that he would be granted six months discretionary leave to remain (DLR).
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12 August 2013 by David Hart KC
C-501/11P Schindler v. European Commission, CJEU, 18 July 2013 – read judgment
Two things of general interest to the human rights lawyer in this unsuccessful attempt by Schindler to challenge a fine of a mere €143 million for anti-competitive behaviour before the EU’s top court.
The first is that the Commission’s role as investigator, prosecutor and enforcer was not found to be in breach of Article 6(1) – because its decisions were subject to “full review” by the EU judges. The second is the remark in the CJEU’s judgment that the EU status of Article 6 ECHR will change when the EU accedes to the ECHR – I shall look at whether this change will be formal or substantive, given the presence of an equivalent right in the EU Charter, within Article 47.
Like a lot of decisions involving issues of high principle, the underlying facts do not reflect well on the offending company, in this case Schindler. It, with three other companies (Kone, Otis and ThyssenKrupp), stitched up the lift and escalator markets in Belgium, Germany, Luxembourg and the Netherlands. Somebody tipped off the Commission, who conducted a massive investigation, and fined all these companies. As is standard, the process of investigation did not involve any oral hearing, with some limitations on the access by the accused companies to all the material which the Commission received.
As my image shows, cartel fines by the Commission involve big big money, and I dare say they dwarf any fines levied by member states on “true” criminals.
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12 August 2013 by Rosalind English
Ignaoua, R (On the Application of) v Secretary of State for the Home Department [2013] EWHC 2512 (Admin) – read judgment
The Government’s termination of existing judicial review proceedings via certification under the Justice and Security Act was “troubling” but lawful. Parliament’s intention was clear, even though there were no new rules in force yet.
The claimant was challenging her exclusion from the UK on national security grounds in proceedings commenced in 2010. The proceedings were terminated under special powers conferred by the Act. The challenge could proceed instead before the Special Immigration and Appeals Commission (SIAC), which has all the powers of the divisional court to conduct a judicial review of his exclusion.
The question before the court was whether the certificate had been lawfully made and not an abuse of process.
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12 August 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular non-silly season of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
The end of the legal term seemingly does not mean a let-up in immigration news, with a number of Home Office, asylum and immigration-related stories making the headlines. Also, the back-and-forth on legal aid cuts continues, as well as some interesting perspectives on the Mental Capacity Act, sexual offences trials and the FOIA veto. Some interesting judgments too, particularly on secret trials.
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4 August 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular heat wave of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
A fairly quiet week in terms of volume, but nevertheless some notable issues. Of note are plans to restrict judicial review, the ‘bedroom tax’ judgment, and a key decision in the ongoing debate on assisted suicide.
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2 August 2013 by Guest Contributor
Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (Ch) – Read judgment
The ruling in the Rihanna/Topshop case marks a significant trend, both in case law and society, towards equating image with commodity. Increasingly, celebrities and sports personalities earn large sums of money from sponsorship and advertising deals because companies recognise that their image sells products. So how can so-called image rights be protected?
The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.
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1 August 2013 by Alasdair Henderson
Sindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment here.
The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).
The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.
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31 July 2013 by Rosalind English
MA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment
The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.
The arguments
This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ). These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities.
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31 July 2013 by Rosalind English
R (on the application of) Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961 – read judgment
The Court of Appeal has today unanimously dismissed appeals by Jane Nicklinson and Paul Lamb challenging the legal ban on voluntary euthanasia.
We have posted previously on the Hight Court ruling in the Nicklinson case, here and here. The following is based on the Court’s press summary. An analysis of this case will follow shortly.
Summary of the facts and the ruling
These appeals concern two individuals who suffer from permanent and catastrophic physical disabilities. Both are of sound mind and acutely conscious of their predicament. They have each expressed a settled wish to end their life at a time of their own choosing in order to alleviate suffering and to die with dignity.
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30 July 2013 by Guest Contributor
According to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:
We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.
This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.
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29 July 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular social media storm of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
With the judges winding down for their end of term break, this is not such a busy week of news; so instead a good opportunity to think over the role of the European Convention on Human Rights. Various immigration stories keeping the commentators busy, if not making the headlines; and keep up-to-date in public law with the latest from the ALBA conference.
Reminder: there is a Rally for Legal Aid tomorrow, Tuesday 30 July, 4:30-6:30 at the Old Bailey. Full details here.
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NHS Trust v DE [2013] EWHC 2562 (Fam) 16 August 2013 – read judgment
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