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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10 November 2011 by Guest Contributor
There is a commission on a bill of rights for the UK. It is in the midst of a consultation process, and visited Belfast this week. Have you noticed?
The commission’s establishment and composition provoked adverse comment. The mood of open hostility to existing human rights law merged with the potential for engineered political standoff, as the commission members are split between those who support the Human Rights Act and those who oppose it. A commission born from political compromise looks primed for stalemate. Not the best way to initiate a new constitutional conversation.
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9 November 2011 by Rachit Buch
JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) – Read judgment
Elizabeth Anne-Gumbel QC and Justin Levinson of One Crown Office Row acted for the Claimant in this case. They did not write this post.
A Roman Catholic diocese can be held liable for the negligent acts of a priest it has appointed, the High Court has ruled. The ruling is a preliminary issue in the Claimant’s proceedings against alleged sexual abuse and rape at a children’s home. The trial of these allegations are to follow.
The Claimant, a 47-year-old woman, is suing the Portsmouth Roman Catholic diocese for the injury she alleges she suffered from abuse and rape while living at a children’s home run by the diocese in the early 1970s. The priest involved, Father Baldwin, is now dead. The High Court was asked to determine, before the trial of the allegation, whether the diocese – that is, the district under supervision of the Bishop – could be held liable for Father Baldwin’s acts; whether the principle of vicarious liability applies to a diocesan bishop for the acts of a priest he has appointed.
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8 November 2011 by Rosalind English
David Thomas Howarth v Commissioner of Police of Police of the Metropolis [2011] EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
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8 November 2011 by Rosalind English
ABB & Ors v Milton Keynes Council [2011] EWHC 2745 (QB)- read judgment
Justin Levinson of 1 Crown Office Row acted for the claimants in this case. He is not the author of this post.
This case concerned the entitlement to compensation for the years of abuse the claimants, three brothers a sister, the youngest, who had suffered at the hands of their father. The older claimants had both suffered regular abuse from an early age until late teens. The third claimant escaped the prolonged abuse suffered by his brothers. The fourth claimant, who was conceived after the defendant social services became aware of the situation, nevertheless endured abuse for five or six years.
The father’s abuse of the older boys came to light in 1992 when the first three claimants were placed on the child protection register and the father moved out of the family home. However charges against him were subsequently dropped and he returned home. The names were removed from the register but the abuse continued.
The facts were not disputed but the principal issue between the parties was that of the quality of social work practice adopted by the defendants’ employees and whether this fell below a reasonable standard.
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8 November 2011 by Adam Wagner
The Commission on a Bill of Rights consultation on whether we need one (a bill, not the Commission) closes this Friday 11 November.
The consultation document is here: Do we need a UK Bill of Rights. You can respond by email or to the Commission’s address. Our posts on the commission are here and listed below for background – you can also read our existing Bill of Rights, from 1689, here, the Magna Carta here and the Human Rights Act here.
I intend to collate responses and summarise them once the deadline passes, so please feel free to email your responses (ideally as an MS Word document or PDF) to 1crownofficerow@gmail.com .
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7 November 2011 by Adam Wagner
King of the hill... for a bit
After months of wrangling over the influence of Europe on our human rights law, today the United Kingdom begins its 6-month chairmanship of the Council of Europe (CoE)’s Committee of Ministers. Amongst other things, the CoE supervises compliance with judgments of the European Court of Human Rights.
The CoE, not to be confused with the European Council, European Union, European Commission, Court of Justice of the European Union or European Parliament, is an international organisation with 47 member states comprising over 800 million citizens – see its Wikipedia entry for more on its many functions. The UK was one of the CoE’s founding members when it joined on 5 May 1949.
Coincidentally, the court’s new British president, Sir Nicholas Bratza, began his presidency on Friday; only the third British judge to do so (see my post from July). So there is a genuinely British feel to the organisation, at least for the next 6 months.
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BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment
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