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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/15/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
Global Alliance Against Industrial Aquaculture v. Scottish Ministers, 26 November 2012 read decision
An interesting and robust decision from the Scottish Information Commissioner. An NGO (just look at the tin) asked the Scottish Ministers for information about seal culling licensed by them. The Scottish Ministers did not provide all the information sought; they said which companies had received the licences, and the total number of seals killed, but did not say who killed how many seals where – thus, doubtless, stymieing any focussed debate and engagement by the NGO on the justification for the killings. The industry’s position appears to be that such shootings only took place against occasional rogue seals.
Google Inc v Vidal-Hall and others [2015] EWCA Civ 311 (27 March 2015) – read judgment
This case concerned the misuse of private information by an internet provider based in the United States. Google had secretly tracked private information about users’ internet browsing without their knowledge or consent, and then handed the information on to third parties (a practice known as supplying Browser-Generated Information, or ‘BGI’).
The issue before the Court of Appeal was twofold:
Was the cause of action for misuse of private information a tort, specifically for the purposes of the rules providing for service of proceedings out of the jurisdiction?
What was the meaning of ‘damage’ in section 13 of the Data Protection Act 1998 (the DPA) and in particular, did it give rise to a claim for compensation without pecuniary loss?
At present, the lockdown continues. Image: The Guardian
Previously on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights.
In the first of two response articles, Leo Davidson argued that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis.
In this article, Dominic Ruck Keeneand Henry Tufnell argue that the challengers to the legislation have not shown that the measures adopted by theGovernment are disproportionate in the circumstances of the pandemic.
This is a summary of a paper published here and inevitably simplifies the detailed arguments and considerations within it. The article represents the views of the authors alone.
Note:This post involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.
Introduction
The inevitable has finally happened – a letter before action has been sent to the Health Secretary challenging the legality of the various restrictions that cumulatively make up the current Covid-19 lockdown within the UK through the mechanism of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) (‘the Regulations‘). The letter before action builds on the opinions previously outlined by Francis Hoar both on the UK Human Rights Blog and in a previous paper concerning the compatibility of the ‘lockdown’ with the ECHR. This post seeks to develop Leo Davidson’s earlier analysis of those arguments.
Here, we make the argument that there has not been a breach of all or any of the relevant ECHR rights, namely Articles 5 (right to liberty), 8 (right to private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 14 (prohibition on discrimination) and by Articles 1 (protection of property) and 2 (right to an education) of Protocol 1. Further, that there is in fact no deprivation of liberty under Article 5.
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
(b) to have adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
There is no directly corresponding provision in the EU Charter of Fundamental Rights. Article 20 – the right to equality before the law – is more related to ECHR Art.14, and Article 47, the right to an effective remedy and to a fair trial is based on Art. 13 ECHR which guarantees the right to an effective remedy for human rights violations. However, it has been argued before the European Court of Justice that Article 6 ECHR and Article 47 contain effectively the same fair trial rights (see David Hart’s post on this issue).
The protection of Article 6 ECHR only extends to those disputes that concern a “civil right” (as well of course to the determination of any criminal charge against an individual). The jurisprudence on what does or does not constitute a “civil right” is complex and lengthy but a general rule is that the characterisation of the matter in domestic law is not determinative – Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 – and while such civil rights could be brought into play either by direct challenge or by administrative action, it was the nature and purpose of the administrative action that determined whether its impact on private law rights was such that a legal challenge involved a determination of civil rights. In R(Begum) v Tower Hamlets London Borough Council [2003] 2 AC 430 the House of Lords was prepared to assume that a decision as to housing for a homeless person did involve a “civil right” but in the more recent case of Ali v Birmingham City Council [2010] 2 AC 39 the Supreme Court confronted that question and decided that it did not.
A parent’s rights to contact with, and custody of, a child constitute “civil rights” for the purposes of Art.6. This means that they must have a fair hearing before an independent and impartial tribunal. When a mother was refused access to her child by the local authority, and she was unable to challenge that refusal in court, there was found to be a breach of her Art. 6 rights (although the case was settled after it was declared admissible in Strasbourg: Application no. 11468/85, 15 December 1986). A more recent case against Croatia indicated that exclusion of a mother from the adoption (X v Croatia, 17 July 2008).
It is hardly surprising that domestic courts encounter some confusion when they come to determine whether a matter involves a “civil right” or not; Strasbourg case law on the point is far from clear. In trying to determine whether a freezing order on a claimant’s assets affected his civil rights, Sedley LJ observed that the Strasbourg Court is very clear about the concept having an autonomous meaning, but “What is neither certain nor clear is what that meaning is.” (Maftah v FCO [2011] EWCA Civ 350, and see our post on this case here)
Particular difficulties have been caused by the fast-changing Strasbourg case law on employment disputes involving public servants, which until recently have been excluded from the purview of Article 6. The Court decided in Pellegrin v France (2001) 31 EHRR not to allow administrative servants the guarantees of Article 6 because their employment involves important state imperatives, but defining this kind of employment is far from easy, as was demonstrated by the case of an army chaplain who sought redress for alleged unfairness; after considering the authorities Nichol J found that the claimant fell within the Pellegrin exception under the test laid down in Eskelinen v Finland (2007). See our discussion on this judgment here.
The requirements of fairness imposed on Member States by this Article apply to civil and criminal litigation. Art.6 , taken as a whole, has been held to ensure not only a fair trial once litigation is under way but to impose an obligation on States to ensure access to justice (Golder v United Kingdom (1975) 1 EHRR 524: interference with a prisoner’s correspondence with a solicitor constituted a breach of his right of access to court under Art.6 , even though litigation was not pending). Most recent litigation has concerned the matter of costs; whilst the right of access to justice is implied in Article 6(1), the original case on costs, Airey v Ireland (1979), has not been interpreted to impose on states an obligation to provide a legal aid scheme. Legal aid constitutes one avenue to justice but there are others, such as the availability of representation under a contingent or conditional fee agreement. Legal representation is not considered indispensable in all cases. Where there are no particularly complicated points of law, the state is not compelled to provide a publicly funded lawyer (HH (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 504 ). In environmental challenges, on the other hand, the right of access to (affordable) access coincides with the obligation on states imposed by the Aarhus Convention to avoid prohibitive expense where individuals or groups ask the courts to enforce environmental law. The Aarhus Convention is part of EU law therefore may be relied upon in UK courts, until such time as the UK’s departure from the EU is finalised.
The requirement that the trial be conducted by an “independent and impartial tribunal” is satisfied if an internal disciplinary appeals board consists equally of members of the relevant profession and members of the judiciary: Le Compte, Van Leuven and De Meyere v Belgium (1981)4 EHRR 1.
At the Strasbourg level the most litigated requirement in Art.6 is the obligation on States to ensure that proceedings do not exceed a “reasonable time”. The circumstances of the case may determine the importance of expedition; in AIDS cases the Court’s approach has been stricter than in other areas, since the rapid dispatch of compensation claims is essential in respect to terminally ill patients (X v France (1992)14 EHRR 483). The Court has also take a strict approach to delay in child care cases where the child may have bonded with its new carers: H v United Kingdom (1987) 10 EHRR 95.
The requirement of a public hearing relates to proceedings in courts of first and only instance. The failure to provide a public hearing will not be cured by making the appeal proceedings public where the case is not reheard on its merits: Le Compte .
If the initial hearing (eg by a regulator) does not fulfil the requirements of independence and impartiality, appeal may cure the defect: Bryan v United Kingdom (1996). In any event if the matter is essentially one of policy, the detailed requirements of Art.6 do not necessarily apply: see the House of Lords ruling in Alconbury (2001) and the line of cases preceding the House of Lords’ analysis in R(Begum) v Tower Hamlets London Borough Council .In many administrative fields, such as planning, an administrator may be decision-maker, and not “an independent..tribunal” within the meaning of Article 6(1), but the process will be Article 6(1) compliant, if an aggrieved party has a right of appeal or review from that decision before such a tribunal.
In R(on the application of UNISON) v Lord Chancellor[2017] UKSC 51, the Supreme Court gave an important judgment regarding the importance of access of justice. The Supreme Court held that the fees imposed by the Lord Chancellor in employment tribunal and employment appeal tribunal cases were unlawful.
Another day, another dead journalist; or so seems to be the trend in the media profession following recent news of the brutal beheading of an Israeli-American journalist, Stephen Sotloff, by Islamic State militants in Syria on 2nd September 2014. This Resolution seeks to facilitate the prevention of further fatalities.
According to the Committee to Protect Journalists, 1055 journalists have been killed worldwide in the past 22 years. Gunilla Von Hall, an eminent Swedish foreign correspondent and journalist, opened the Annual Geneva Peace Talks by sharing her experiences as a foreign correspondent to conflict zones such as Iraq and Bosnia. Gunilla commented on her need to ‘write for a visa’, making her withhold certain information from print temporarily so that she could continue to enter certain countries. She has had to openly refuse calls to work in certain areas due to the risks she now faces. Following the birth of her children, Gunilla’s responsibilities have more recently prevented her from risking her safety by travelling to these regions. She observed that, as a result, inexperienced reporters who are based in the countries have to be hired instead. Research undertaken by UNESCO compiled in the report ‘World Trends in Freedom of Expression and Media Development’ suggests that 94% of those targeted have been domestic journalists.
National Union of Rail, Maritime and Transport Workers v Serco (t/a Serco Docklands) [2011] EWCA Civ 226 – read judgment.
Aslef and RMT rail unions have succeeded in challenging injunctions that blocked their strike action over small faults in procedure.
The Court of Appeal has ruled that minor mistakes in balloting such as polling non-constituent workers – did not justify the injunctions that had prevented them from taking strike action. Trade union leaders have called the ruling a “major step for industrial freedom”.
Two strikes that were planned separately – by the RMT on London’s Docklands Light Railway and by Aslef on London Midland – were halted by injunctions in the High Court in December. The judge ruled that strike ballot procedures had not been properly followed and therefore the unions would be unlikely to claim the statutory protection for the action immunity under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt V. The Court of Appeal has decided that ruling was wrong in law. Continue reading →
El-Masri v. The Former Yugoslav Republic Of Macedonia, Grand Chamber of ECtHR, 13 December 2012, read judgment
In a hard-hitting judgment, the 17 judges of the Grand Chamber found Macedonia (FYROM) responsible for the extraordinary rendition of Mr El-Masri, a German national, by the CIA to Afghanistan. We have all seen the films and read about this process – but even so the account given by the Court is breath-taking. And in so doing, most of the members of the Court made explicit reference to the importance of a right to the truth – not simply for El-Masri, the applicant, but for other victims, and members of the public generally. And the story is all the more chilling because the whole episode appears to have been caused by mistaken identity.
The Queen on the application of Totel Ltd v The First-Tier Tribunal (Tax Chamber) and The Commissioners for Her Majesty’s Revenue and Customs [2012] EWCA Civ 1401 – read judgment
Tax litigation is not the most obvious hunting ground for human rights points but if claimants feel sufficiently pinched by what they perceive as unfair rules, there is nothing to stop them appealing to the courts’ scrutiny of the lawfulness of those rules.
Human rights were not raised per se in this appeal but constitutional principles which arguably play the same role made all the difference to the outcome.
This case concerned the removal of a right of appeal by an Order in Parliament that stopped the appellant company (T) in its tracks, so naturally it turned to judicial review to find a remedy that the tax tribunal was not prepared to grant. T prayed in aid a fundamental principle of our unwritten constitution set out in R (Spath Holme Ltd) v Secretary of State for Transport, the Environment and Regions [2000] 2 WLR 15:
Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation. When it does so the enabling power should be scrutinised, should not receive anything but a narrow and strict construction and any doubts about its scope should be resolved by a restrictive approach.[35] Continue reading →
OM (ALGERIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2010] EWHC 65 (Admin) – Read judgment
The claimant’s detention pending deportation was unlawful where (1) the Secretary of State had failed to take account of the guidance on immigration detention, which indicated that the mentally ill were usually unsuitable for detention and (2) the Secretary of State had failed to notify the Claimant of his right of appeal once a Court of Appeal had, in a similar case, determined such a right to exist.
Summary
The Claimant, having entered the UK illegally in 1996, had a string of criminal convictions and a Class A drug habit. Although he had claimed asylum in 1999 the whole of his claim was found by the Asylum and Immigration Tribunal (“AIT”) to be a fabrication. He had married and had two young children in the UK. The most significant issue, however, was his diagnosis in 2003 as suffering from schizophrenia.
Serco is a private company that was contracted by the UK Home Office between 2012 and 2019 to provide accommodation to asylum seekers living in Glasgow. In July 2018, Serco began to implement the “move on protocol” – a new policy of changing locks and evicting asylum seekers without a court order if they were no longer eligible for asylum support. This put around 300 asylum seekers – who had no right to work or who had no right to homeless assistance – at risk of eviction and homelessness in Glasgow without any court process.
In response to this, the Stop Lock Change Evictions Coalition (“the Coalition”) was formed by various organisations, charities and lawyers who all united for one common purpose – to protect asylum seekers’ human rights, particularly in relation to housing.
Liberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-, 5 December 2014 – read judgment
Robert Seabrook QC is on the panel of the IPT and David Manknell of 1 Crown Office acted as Counsel to the Tribunal in this case. They have nothing to do with the writing of this post.
This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading →
On 21st April 2009, John Worboys (now under the name of John Radford) was convicted of 19 serious sexual offences, including rape and sexual assault, which were committed on victims aged between 19 and 33 between October 2006 and February 2008. He was given an indeterminate sentence for public protection – specifying a minimum term of imprisonment of 8 years after which Worboys would be eligible for release if the Parole Board was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.
On 26th December 2017, the Parole Board determined that incarceration was no longer necessary and directed for Worboys to be released. After much public outcry, the decision was challenged by the Mayor of London, two victims and, on a discrete aspect of the decision, a media group.
A decision to release a prisoner by the Parole Board had never been the subject of judicial review before. This is because the only parties to a hearing before the Parole Board are the Secretary of State for Justice, the Parole Board themselves and the prisoner. The proceedings are held entirely in private. To that extent, unless the Secretary of State for Justice intervened to seek judicial review of a decision by another government body, the decision was effectively unchallengeable.
Big business between government and property developers may be at risk from public interest challenges in the courts if current obstacles are removed.
Following critical findings by a UN environmental body, the Government has set out its latest proposals for allocating the costs burden in environmental cases. The current position is that an applicant who seeks to dispute the lawfulness of a decision, say, to grant permission for a development, will only get a court order preventing commencement of construction if they are prepared to pay for the developer’s loss should their claim fail at the full trial of the merits.
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As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
In 
On 28th March 2018 a three-judge panel of the Divisional Court gave its decision in 
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