24 November 2011 by Shaheen Rahman
R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment
In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful.
The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly. Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.
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23 November 2011 by Rosalind English
South Africa’s Protection of Information Bill is about to be transformed into a new secrecy law as it was pushed through parliament yesterday, Jan Raath reports in the Times. See our previous post on the details of the law’s scope and potential chilling effect on investigative journalism and whistleblowers.
In essence, if this bill becomes law it would allow any organ of state, from the largest government department down to the smallest municipality, to classify any document as secret and set out harsh penalties of up to 25 years in jail for whistleblowers.
Raath quotes Siyabonga Cwele, the Security Minister, as declaring last week that South Africa had been under
an increased threat of espionage since 1994 when it adopted a non-racial democratic Constitution. He denounced opponents of the Bill as “proxies of foreign spies”.
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23 November 2011 by Rosalind English
Ali Zaki Mousa v Secretary of State for Defence & Anr [2011] EWCA Civ 133 – read judgment
Philip Havers QC of 1 Crown Office Row represented the respondent secretary of state in this case. He is not the author of this post.
The Court of Appeal has ruled that the Iraq Historic Allegations Team, set up to investigate allegations of ill-treatment of Iraqi detainees by members of the British armed forces, lacked the requisite independence to fulfil the investigatory obligation under Article 3 of the Convention.
The claimant was representative of a group of Iraqis numbering about 100 who brought judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces – see our post on the permission hearing.
The so-called “Iraq Historic Allegations Team” (IHAT) was set up to investigate these allegations. The IHAT included members of the General Police Duties Branch, the Special Investigation Branch and the Military Provost Staff. A separate panel, the Iraq Historic Allegations Panel (IHAP), was appointed to ensure the proper and effective handling of information concerning cases subject to investigation by the IHAT and to consider the results of the IHAT’s investigations, with a view to identifying any wider issues which should be brought to the attention of the Ministry of Defence or of ministers personally.
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22 November 2011 by Adam Wagner
Updated x 3 | One way or another, by the end of this Parliament, rights protections in the UK will look very different. If you could pull yourself away from the spectacle of actor Hugh Grant giving evidence to the Leveson Inquiry into phone hacking, the main event in yesterday’s live legal transmission bonanza was the second debate on the Legal Aid and Sentencing of Offenders Bill in the House of Lords.
Although the bill is likely to pass, it is likely to do so in slightly revised form – knowledgable tweeters were predicting that the domestic violence and clinical negligence provisions were most likely to be affected.
Meanwhile, over at the Commission on a Bill of Rights, the somewhat dysfunctional committee will be combing through responses to its recently closed consultation. I have collated some of the responses below, mainly from people who have sent them to me. What follows is an entirely unscientific summary.
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21 November 2011 by Richard Mumford
This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.
The General Dental Council v Savery and others [2011] EWHC 3011 (Admin) – Read judgment
Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.
The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.
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21 November 2011 by Melina Padron
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The Leveson Inquiry begins
Last week saw the start of the Inquiry into the culture, practices and ethics of the press, headed by Lord Justice Leveson. Proceedings can be followed via the Inquiry’s website, where you can either watch live hearings or videos of past hearings, a move welcomed by Adam Wagner as a “minor landmark for open justice.” Hugh Grant (pictured) as well as other celebrities and victims will be appearing this week to give evidence.
Blogger Obiter J reported that Lord Justice Leveson gave an interesting warning to journalists against unjustified coverage of the Inquiry proceedings. Such unjustified and hostile coverage, said Lord Justice Leveson, might lead to the “conclusion that these vital rights are being abused which would itself give evidence of culture, practice and ethics which could be relevant to my ultimate recommendations.” The warning, remarks Obiter J, may be perceived as the imposition of restriction on the media. The Inquiry’s opening day has been described as “dramatic”, particularly due to the powerful submissions made by Robert Jay QC, counsel for the Inquiry. Mr Jay QC, in a long speech, set out the purposes and concerns of the Inquiry and referred to evidence which may indicate that the practice of phone hacking at News International was a systematic one.
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17 November 2011 by Rosalind English
BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment
There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?
The key lies in the Strasbourg Court’s traditionally restrictive interpretation of the relevant part of Article 10 – “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.
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17 November 2011 by hrupdateadmin
Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
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16 November 2011 by Karwan Eskerie
Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling
The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.
In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.
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15 November 2011 by Adam Wagner
Updated x 2 | Today, guardian.co.uk’s Comment is Free (CIF) was “taken over” by the Occupy London movement. This has led to two particularly worrying articles being published. Both purport to offer legal advice which, if followed, could lead you straight to prison.
For that reason, Guardian CIF goes straight to the legal naughty step, where it can share a tent with the Occupy London movement. I understand that the Guardian’s online legal editors had nothing to do with the commissioning of the articles, and I also realise that “comment is free“. But there has to be a limit, and there is a huge difference between a controversial but plausible point of view and quackery. As C. P. Scott’s phrase continues “… comment is free but facts are sacred“.
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15 November 2011 by Rosalind English
... is at the core of Jonathan Sumption QC’s FA Mann Lecture. His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.
Drawing on his not inconsiderable command of history he sets out to explain that the immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, “aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore.” We fool ourselves if we still view this as a power-grab by ambitious ministers and officials. The truth is that a powerful executive is “inherent in the democratic character of the modern state.”
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14 November 2011 by Adam Wagner
Updated |Today marks a minor landmark for open justice. For the first time, a public inquiry is being shown live over the internet.
The Leveson Inquiry into Culture, Practices and Ethics of the Press has taken over Court 73 in the Royal Courts of Justice, so when Counsel to the Inquiry Robert Jay QC begins his cross examination, you could even imagine you are watching a live trial – on that note, watch this space.
The Iraq (Chilcott) Inquiry was broadcast live but it was not a public inquiry under the Inquiries Act 2005, as Leveson’s is. The Inquiry’s website has been relaunched and will be hosting the live stream of hearings on this page. My only grumbles about the new website are that the live coverage should be more prominently advertised on the main page.
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13 November 2011 by Graeme Hall
Sumption
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Graeme Hall
In the news
Last Friday was the deadline for submissions to the Commission on a Bill of Rights consultation – please send your submissions to 1crownofficerow@gmail.com and we will publish them in a roundup later this week.
Is my presumed intention inferred from a fair imputation? How naïve!
Domestically, Jonathan Sumption QC, an at-some-time-in-the-future Supreme Court Justice, has been described by Joshua Rozenberg as demonstrating a certain ‘naivety’ when, in delivering the FA Mann Lecture, he argued that judges are too interventionist in policy decisions, and that parliamentary scrutiny is generally a sufficient safeguard to protect ‘the public interest’.
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11 November 2011 by Adam Wagner
The Civil Justice Council (CJC) has just released a major new report: Access to Justice for Litigants in Person (or self-represented litigants). The report attacks head-on the prospect of thousands more people having to represent themselves in court once civl legal aid is mostly taken away.
The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.
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10 November 2011 by Rosalind English
S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment
The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12. The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.
This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006). Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life.
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