Conor Monighan brings us the latest updates in human rights law
Credit: the Guardian
In the News:
The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.
The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions. Continue reading →
The Lord Chancellor and Secretary of State for Justice, David Gauke, has published his report into the Review of Legal Aid for Inquests. This follows numerous campaigns and calls for more extensive funding for bereaved families at inquests, particularly those where the state is represented.
short, the news is not good for those campaigners:
Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented [sic]. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.
Another search, it seems, for ‘alternative arrangements’.
Esegbona v Kings College Hospital  EWHC 77 (QB)
Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe QC sitting as a High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.
Following our popular interview with James Badenoch QC on the “doctor knows best” rule of evidence in medical negligence cases, we bring you John Whitting QC, healthcare law specialist at 1 Crown Office Row (@JohnWhittingQC). In Episode 64 of Law Pod UK, John talks to Rosalind English about the realities of clinical encounters and considers to what extent patients are willing, or in some circumstances even able – to take on board multiple options for their treatment.
At the end of January the Investigatory Powers Commissioner published his first annual report for 2017. Its coverage of errors provides some very welcome transparency. But one matter remains opaque and exposes a legislative and policy challenge: when serious mistakes are made, who finds out?
In this post I set out what the IPC report says in this regard, explain the legislative framework, and then identify the challenges and choices for both law and policy. The two points I highlight are:
There is a policy choice underpinning the IPC report about what information to present, and what not to present. It would be helpful and appropriate for the IPC to provide more clarity about how often people were affected by errors but notinformed of it.
There are policy and legislative challenges that remain with regard to whether people will – as it currently seems – neverbe informed that they were affected by a serious error.
The Supreme Court has upheld challenges to the legal regimes for disclosing criminal records in England and Wales, and Northern Ireland, finding them to be incompatible with Article 8 of the European Convention on Human Rights (“ECHR”).
R (P, G and W) and Anor v Secretary of State for the Home Department and Anor  UKSC 3 – Read Judgment
A cross-party group of MPs is seeking to put an end to indefinite detentionin immigration centres. Led by Harriet Harman MP, the Chair of the Joint Committee on Human Rights, the group are backing an amendment to the Immigration and Social Security Coordination (EU Withdrawal) Bill, which will make it illegal for people to be held for more than 28 days in an immigration detention centre, unless a judge issues a 28-day extension.
The Human Rights group Liberty has published two important reports. The first report highlights the failings of the UK military justice system, including a lack of transparency and a practice of downgrading offences to as to deal with them internally; the report recommends a new independent supervisory body for the Service Police. In connection with the report, Liberty has launched an Armed Forces Human Rights Helpline.
The second Liberty report evaluates the use of ‘predictive mapping’ by the police to identify crime hotspots and to conduct ‘individual risk assessments’. The report concludes that this system threatens privacy and freedom of expression, and encourages discrimination and racial profiling.
Domestic abuse is endemic in UK society. The law’s response has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (rarely used), and uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order). Each is governed by a different set of procedural rules; and different means of enforcement. Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.
Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson UKHL 1,  AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said:
I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnsonremains important: it provides the continuing House of Lords definition of the stare decisisrule.)
The evolution of international human rights law (IHRL) in the UN era has seen a paradigm shift away from a view of international law as applying solely to states and their relations with other states, to a focus on the rights of individuals and the duties states owe to citizens. As articulated in the Universal Declaration of Human Rights, certain rights are so fundamental as to be universal in scope based on our common humanity. As Reisman notes‘no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law.’
The question is how these inalienable rights, expressed so forcefully on the international level, can be transposed into domestic law. One way is through the process of judicial interpretation. However, this poses a challenge in dualist systems where, traditionally, courts do not take international law into account, unless implemented by national legislation. This reluctance to engage with unincorporated IHRL is what the 1988 Bangalore Judicial Colloquium—a group including such luminaries as Michael Kirby, Ruth Bader Ginsburg, Anthony Lester and P.N. Bhagwati—sought to address. The resulting Bangalore Principles, concluded that:
It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes—whether or not they have been incorporated into domestic law—for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.
If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust  EWCA Civ 2832.
The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.
The European Court of Human Rights has held in Catt v The United Kingdom (43514/15)) that that the retention by UK police of information on the Domestic Extremism Database about a 90 year-old activist’s presence at political protests was a breach of his Article 8 ECHR rights. The ruling follows the Supreme Court’s contrasting judgment that such gathering and retention had been lawful and a proportionate interference with Mr Catt’s Article 8 ECHR rights.
In July 2018 Noel Conway, who suffers from motor neurone disease, lost his claim for a declaration that the UK’s ban on assisted suicide was a disproportionate and unnecessary interference with his right to autonomy under Article 8. The Supreme Court refused to hear his appeal.
The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services.
Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.
An Amsterdam court has ruled that Google should bring down an unofficial “blacklist” of doctors maintained by a discussion group on the internet. This is said to be the first right to be forgotten case involving medical negligence by a doctor.
The judgment – available only in Dutch and heavily redacted – was handed down in July last year. But publication was delayed due to disputes over whether publication would compromise the anonymity not only of the claimant but of the other fifteen doctors on the blacklist. The claimant’s lawyer, reported in The Guardian, predicted that Google will “have to bring down thousands of pages” as a result of this ruling:
There is a medical disciplinary panel but Google has been the judge until now.
The claimant was a surgeon who had been suspended by a disciplinary panel because of her postoperative care of a patient. This was changed to a conditional suspension after she appealed and she was allowed to continue practising.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.