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The CJEU ruled on Tuesday that Directive 2002/58/EC (‘the Directive’) precludes national legislation from ordering telecommunication companies to transfer data in a “general and indiscriminate” manner to security agencies, even for purposes of national security. This is following a challenge by Privacy International to UK security agencies over their practices of collecting bulk communications data (BCD).
The ruling could throw up roadblocks to a post-Brexit “adequacy” agreement over the UKs data protection regime. Adequacy is granted to data protection regimes to confirm that they conform to the data protection standards of GDPR, and thus that companies may move data about EU data subjects outside of the EU to those regimes. Recently, the adequacy rating of the US “Privacy Shield” was invalidated by the Schrems II judgment. This ruling could prove to be an analogous issue for the UK’s adequacy rating at the end of the transition period.
This week the eyes of the United Kingdom, and quite possibly the whole of Europe, were trained on Luxembourg for an eagerly awaited judgement from the Court of Justice of the European Communities. However, before we embark on a lengthy and forensic analysis of the German/Slovakian case of AlzChem v Commission (State aid – Chemical industry – Judgment) [2018] EUECJ T-284/15 (13 December 2018), we should pay some attention to the week’s legal Brexit developments…
The CJEU this week delivered judgement in the case of Wightman and Others – (Notification by a Member State of its intention to withdraw from the European Union – Judgment) [2018] EUECJ C-621/18 (10 December 2018). The case had been referred to the Luxembourg court by the Inner House of the Court of Session and addressed the feasibility of unilateral revocation of Article 50 TEU. The UK government sought to have the application ruled inadmissible on the grounds that the question posed was hypothetical, no such revocation of Article 50 having been attempted or even contemplated. The European Council and Commission meanwhile contended that although revocation was possible, the right was not unilateral. They appeared to fear abuse of Article 50 by member states who could unilaterally seek to terminate their membership of the European Union, revoke that termination and then repeat the exercise as necessary to circumvent the two-year time limit imposed by Article 50 on withdrawal negotiations. Continue reading →
The 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).
Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.
Case C-131/12: Google Spain SL & Google Inc. v Agencia Española de Protección de Datos (AEPD) & Mario Costeja González – read Opinion of AG Jääskinen
This reference to the European Court of Justice (CJEU) concerned the application of the 1995 Data Protection Directive to the operation of internet search engines. Apart from demonstrating the many complications thrown up by this convoluted and shortsighted piece of regulation, this case raises the fascinating question of the so-called right to be forgotten, and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine.
The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties. A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.
The challenges raise a whole host of issues – the key ones are:
(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;
(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;
(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;
(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;
(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.
P (A Child) [2014] EWCA Civ 888 – read judgment here.
1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.
In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.
The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.
Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular glittering galaxy of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
Military intervention in Syria has been greatly discussed this week in the media. Here, we look at how legal it would be for the UK to send troops over. Meanwhile, David Miranda’s hearing continues, and many judicial review claims are due, soon, to move from the High Court to the Upper Tribunal.
R (o.t.a. Dilner) v. Sheffield City Council [2016] EWHC 945 (Admin), Gilbart J, 27 April 2016, read judgment
A quick note on the latest Aarhus Convention point to come before the domestic courts.
In November 2015, I posted on the decision by Ouseley J in McMornhere that a gamekeeper’s challenge fell within the scope of Aarhus, and that as a result there should be a more intense scrutiny of the underlying merits of the claim than would typically be allowed under domestic public law principles.
The current case bears on the standard of review point. Mr Dilner and other environmental campaigners challenged the tree-felling policies of Sheffield City Council, and one of his arguments was that tree-felling required an environmental assessment under the Environmental Impact Assessment Directive. This environmental claim fell within the protections conferred by the Aarhus Convention, and hence, it was said, required such an intense scrutiny. Mr Dilner relied upon Ouseley J’s reasoning.
Gilbart J robustly rejected the argument, and did not follow Ouseley J’s ruling.
Thomas Hayes is a specialist registrar in vascular surgery and forthcoming pupil at 1 Crown Office Row
As teased earlier, the Covid-19 pandemic gives rise to such a volume of material as to justify a slightly more detailed examination of its consequences. In time, the response of governments across the globe to the disease will no doubt be the subject of detailed study by academics across the fields of biology, history and law. For the time being, however, blog readers will have to tolerate the following words of speculation, much of which will probably suffer the cruel fate of being shown to be out of date and/or inaccurate within hours of publication…
The government has announced its intention to bring before Parliament this week emergency laws to help control the outbreak. Whilst at the time of writing, such draft legislation had not been published, press reports suggested it would include new powers to allow the police to detain those breaking quarantine measures. Where the police might take such recalcitrant citizens is not known, however the prospect of detaining in close proximity those suspected of carrying the highly infectious airborne disease presumably fills neither the police nor public health officials with much joy…
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.
Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment
Interest in the “locked-in syndrome” cases currently before the High Court runs high. We posted here on the permission granted to locked-in sufferer Tony Nicklinson to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.
He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)
The Queen (on the application of LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin)
Where a coroner has reason to suspect that a person has died in custody or “otherwise in state detention” and that the death was violent, unnatural or by way of unknown cause, the coroner must hold an inquest with a jury (section 7 Coroners and Justice Act 2009 (“CJA”)). The interesting issue in this case was whether and/or in what circumstances a person who has died whilst in intensive care will be regarded as having died “in state detention”, thus triggering a jury inquest. Continue reading →
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Welcome back to the UK Human Rights Roundup, your regular glittering galaxy of human rights news and views. The full list of links can be found 
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