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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/23/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.
The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self-incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities. Continue reading →
Seal v United Kingdom (Application no. 50330/07) – Read judgment
The European Court of Human Rights has rejected the claim of a man detained by the police for 9 days under mental health law. Despite legislation deliberately making it difficult to sue authorities carrying out mental health functions, the court ruled that the law did not unduly restrict access to the courts.
Although Mr Seal ultimately lost, his claim – and in particular a strong dissenting judgment by Baroness Hale in the House of Lords – highlights the tricky line the state must tread in relation to people with mental health problems in relation to their access to justice.
The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent) [2017] NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
This is the second of two posts by David Gollancz, a barrister at Keating Chambers and donor-conceived adult, about the UK system of birth registration and certification. The first post concerned the treatment of transgender parents. This second post deals with the position of the offspring of gamete donation.
In two recent claims by trans parents, JK and TT/McConnell, the court determined that the law requiring trans people to be registered as parents in their native gender interfered with their Article 8 ECHR rights to respect for their private and family life, but that the interference was justified under Article 8(2). A significant, possibly decisive, reason for the court’s decision was the right of the children concerned to identify their biological ascendants. – described by the judge in JK [109] as “an important element of his or her fundamental identity”.
This is nothing new. The ECtHR has repeatedly emphasised that Article 8 includes the right to establish identity and, accordingly, the right to know the identity of one’s biological ascendants (Mikulić [53], Jäggi [37 – 38], Godelli [52]). The domestic court, in Rose [45] held (on the preliminary issue of whether Article 8 ECHR was engaged) that
Respect for private and family life requires that everyone should be able to establish details of their identity as individual human beings. This includes their origins and the opportunity to understand them.
But where a person is conceived in a UK licensed fertility clinic (a “clinic”) — like Mr McConnell’s son — their birth registration does not record, and their birth certificate does not disclose, the fact that they are donor-conceived, let alone the identity of their donor parent. Their donor’s identity is recorded by the Human Fertilisation and Embryology Authority (“HFEA”) (s31 Human Fertilisation and Embryology Act 1990). Since 1 April 2005, under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 (the “disclosure regulations”), a person aged 18 or over can require the HFEA to disclose whether they are donor-conceived and the identity of their donor (if the donor provided the relevant information after 31 March 2005). But that right is unlikely to be exercised unless someone tells them the truth, or it is obvious because their legal parents are of the same sex.
In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it? We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means? Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise? Continue reading →
People are going hungry in England because England, to the detriment of the poor, has forgotten its legal history.
Nearly eight hundred years ago, in 1216 English law first recognized a right to food. Yet between April and September this year over 350,000 people received three days’ emergency food from the Trussell Trust food banks, triple the numbers helped in the same period last year.
Although justifiable outrage has been expressed at this increasing hunger in 21st century England, such hunger has not been regarded as an issue of human rights law, but only of charity. The United Nations, however, has made clear that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights. Continue reading →
In this guest post, Dr Ilaria Bertini, Research Fellow at Bios Centre, examines the recent decision of a Chamber of the Third Section of the European Court of Human Rights in Mortier v. Belgium, which examined Belgian law relating to euthanasia.
Introduction
The European Court of Human Rights recently delivered a landmark judgment, Mortier v. Belgium (78017/17), on a case of euthanasia.
The case concerns an adult Belgian citizen who underwent a euthanasia procedure at a time when she was suffering from severe depression, without her son or daughter being properly informed. Hence her son, Tom Mortier, claimed that the government failed to protect both her right to life (art. 2 ECHR) and her right to respect for private and family life (art. 8 ECHR).
According to the Belgian Act on Euthanasia (28th May 2002) it is legal for a physician to perform euthanasia if the following three criteria are met: the patient is legally competent and conscious at the time of the request, the request is made autonomously without external pressure, and the patient is suffering from a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.” An independent second opinion might be needed to assess the patient’s willingness to die. Once the euthanasia is approved, there is a cooling off period of one month before the act takes place. Afterwards a Commission of 16 persons seeks to check all the reports to make sure that the procedure has complied with the law.
R (Finch) v. Surrey County Council et al [2020] EWHC 3559 (QB) – read judgment
Environmental Impact Assessment or EIA is the process by which a developer and a planning authority look at whether a particular project is likely to have significant direct or indirect effects on the environment. And an EIA must address a factors such as human health, biodiversity, land, water and climate as well as cultural heritage and landscape.
But how far does the enquiry have to go? This is the very stark question raised by this planning case.
The developer wanted to drill oil from the Horse Hill site in Surrey (see pic) for a production period of 20 years. The crude oil thus won would be tankered offsite for refining by others. The refined product would probably be used for transportation, but also for heat, manufacturing and in the petrochemical industry.
The issue was whether the local authority could stop its EIA lines of enquiry when it had considered the setting up works and the oil production processes, or whether it had to assess the wider climate change implications of long-term use of the oil so produced.
The judge, Holgate J was firmly of the view that the assessment process was limited to the first. Surrey’s EIA process was thus sufficient.
Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 – read judgment
Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.
I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.
McMorn (R, on the application of) v Natural England[2015] EWHC 3297 (Admin) – read judgment
An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant).
This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.
But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.
As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domesticchallenge on grounds of irrationality. I deal with that point first.
Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.
I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.
The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Issues
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
Quarantines and lockdowns are sweeping Europe: Italy, France, Spain. Through them, states seek to contain Covid-19 and so save lives. It is difficult to imagine higher stakes from a human rights perspective: mass interferences with whole populations’ liberties on one side; the very weighty public interest in protecting lives on the other; and all this under the shadow of uncertainty and disorder. What, if anything, do human rights have to say?
To begin sketching an answer to this complex question, this post analyses the situation in the European state furthest down this path: Italy. After outlining the Italian measures (I), it argues that Italy’s mass restrictions on internal movement are unlikely to violate the right to free movement but pose problems in respect of the right to liberty (II). I conclude by summarising the tangle of other rights issues those measures raise and making a tentative reflection on the currently limited role of human rights law (III).
Before beginning, I should note that analysing measures’ human rights compliance in abstracto is difficult and slightly artificial: a great deal turns on how measures are implemented in practice and particular individuals’ circumstances. Moreover, my analysis is limited to the European Convention on Human Rights (‘ECHR’), and I do not profess expertise in Italian law (which is proving complex to interpret). The aim of this post is therefore to start, not end, debate about human rights’ role as these measures begin to spread across Europe.
The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment
and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment
The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.
This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.
Angela Patrick of Doughty Street Chambers provides an initial reaction on the implications of the decisions in Tele Sverige/Watson for domestic surveillance and the Investigatory Powers Act 2016.
In an early holiday delivery, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the joined cases of Tele Sverige/Watson & Ors (C-203/15/C-698/15), this morning.
Hotly anticipated by surveillance and privacy lawyers, these cases consider the legality of data retention laws in Europe, following the decision in Digital Rights Irelandthat the Data Retention Directive was unlawful. Broadly, the CJEU confirms that EU law precludes national legislation that prescribes the general and indiscriminate retention of data. The Court concludes that the emergency data retention legislation passed in a few days in 2014 – the Data Retention and Investigatory Powers Act 2014 – is unlawful. That legislation is, of course, due to lapse at the end of December 2016 in any event.
This morning’s decision comes just too late to have influenced the passage into law of the Investigatory Powers Act 2016 (“IPA”) – the new domestic bible on bulk surveillance, interception, communications data retention and acquisition and equipment interference – which received Royal Assent in early December. However, what the CJEU has to say about surveillance and privacy may determine whether the IPA – also known by some as the Snoopers Charter – has a long or a short shelf-life.
The powers in IPA are built on the same model as its predecessor and provides for broad powers of data retention with limited provision for safeguards of the kind that the Court considered crucial. Significant parts of that newly minted legislation lay open to challenge. Continue reading →
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Philips v Mulcaire [2012] UKSC 28 – read judgment
Angela Patrick of Doughty Street Chambers provides an initial reaction on the implications of the decisions in Tele Sverige/Watson for domestic surveillance and the Investigatory Powers Act 2016.
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