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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/38/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The Courts and Tribunals Judiciary has just published the newest edition of the Administrative Court Judicial Review Guide. The guide covers all the stages of judicial review proceedings, and is available here, for the perusal of practising and aspiring lawyers (as well as interested others).
In international news
Tedros Adhanom Ghebreyesus, the director-general of the World Health Organisation has criticised the inadequate international response to the conflict in Sudan. Since April 2023, over 20,000 have been killed and over 10 million people are displaced, while 25.6 million people (around half of Sudan’s population) are facing high levels of food insecurity. Ghebreyesus has called for an immediate ceasefire with a lasting political solution as well as a scale up in the delivery of humanitarian aid. Human Rights Watch have published a report about the flow of foreign arms which are sustaining the fighting. Human Rights Watch have traced the weapons to China, Russia, Iran, Serbia and the United Arab Emirates, and argue that weapons such as armed drones, rocket launchers and anti-tank missiles have been used in attacks against civilians. Human Rights Watch is calling for an arms embargo for the entirety of Sudan, and a sanction regime to punish those violating the existing arms embargo on Darfur.
The High Court has quashed the grant of planning permission for a new coal mine at Whitehaven, Cumbria. The Secretary of State had previously admitted an error of law as the downstream emissions caused by the inevitable burning of the extracted coal were not factored into the Environmental Impact Assessment, thus the appeal was litigated by the mine owner West Cumbria Mining. The High Court did not accept the argument that coal mined in Cumbria would substitute coal extracted elsewhere to meet market demand, or the argument that the mine would have a “net zero” impact because West Cumbria Mining pledged to purchase carbon credits.
A contractual dispute between Tesco, the Union of Shop Distributive and Allied Workers, and a small group of Tesco’s employees has shone a new light on controversial “fire and rehire” practices. In 2007, Tesco closed down some of its distribution centres and opened new ones in new locations. To persuade staff to relocate they offered enhanced pay referred to as “retained pay”. Employees were told that the retained pay was permanent. In January 2021, Tesco decided to “phase out” the retained pay in exchange for a lump sum, and told employees that if they did not did not accept this change their contracts of employment would be terminated and they would be rehired on new contracts with the retained pay removed. The Supreme Court held that there was an implied term, required for business efficacy, that Tesco could not terminate the employees’ contracts to rehire them without the retained pay. The mutual intention of the parties was that the retained pay would serve as an inducement for experienced workers to relocate and this would be undermined if Tesco had the right to unilaterally remove the retained pay at any time for its business purposes.
The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law. Continue reading →
Update, 15:15:I originally referred below to there being a majority of six versus two in favour of introducing a bill of rights. This was wrong – in fact there were seven. The Commission chair, Sir Leigh Lewis, should have been included in that number.
The Commission on a Bill of Rights has reported, just in time for its end-of-2012 deadline. The documents are here: News release ; Volume 1 ; Volume 2.
I have read the introduction, which sets out the main proposals. A few things that jumped out:
As predicted by most people since the beginning, there are areas of agreement but also some significant disagreements. Only seven out of the nine Commissioners believe there should be a bill of rights. Helena Kennedy and Philippe Sands disagree. Even the title is equivocal: “A UK Bill of Rights? The choice before us“.
This is not a unified document, but rather a running, almost Socratic, dialectic between the nine members. It is difficult to follow who agrees with which bit, even in individual paragraphs which are often qualified by “a majority believes”. Bizarrely, and going beyond even my pessimistic expectations of strife, there are eight (eight!) separate papers written by individuals and groups of individuals included in the report, including one by Lord Faulks and Jonathan Fisher on the European Court and why it is going beyond its original remit, one by Sands and Kennedy on why they don’t think there should be a bill of rights, a personal explanatory note by Lord Lester… it goes on. That is one of the reasons this is such a long document.
Dover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
Gladman Developments v. SoS for Communities and Local Government, Interested Party:CPRE [2017] EWHC 2768 (Admin) 6 November 2017 – read judgment
An interesting example of how our planners must take air pollution concerns far more seriously in the light of the long-running ClientEarth litigation.
The developers wanted to build a total of 470 dwellings and 60 care units in Newington, Kent. Their application went to appeal before a Planning Inspector, and they lost on air quality grounds. They unsuccessfully sought judicial review of his decision.
An Extinction Rebellion protester is removed by police in central London. Credit: The Guardian.
As the general election campaign accelerated this week, the political fall out from the publication of the Grenfell Tower Inquiry contributed to some awkward headlines for both politicians and lawmakers. However, this was by no means the only legal news of the week…
The case turned on the lawfulness of the exercise of powers by the police under section 14(1) of the Public Order Act 1986 to ban XR’s protests earlier this month.
The court ruled that in exercising section 14 powers, the police were required to identify a location to be covered by the powers conferred by the Act. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, were not held to be one public assembly within the meaning of section 14(1). Consequently, the decision of the police to impose the condition across a wide area of London for several days was unlawful, being outwith the powers conferred by section 14(1).
What: Dignity, Death and Deprivation of Liberty: Human Rights in the Court of Protection
When: 6pm on Wednesday 10th October 2012
You are invited to join 1 Crown Office Row for an event to mark the 5th Anniversary of the Court of Protection. This Seminar will focus on current key topics in the Court of Protection being debated by two teams of Counsel from 1 Crown Office Row before an interventionist Panel comprising Philip Havers QC, Professor Anthony Grayling and Richard Stein, solicitor at Leigh Day & Co solicitors.
There are still a few places remaining to attend this event. If you are currently a legal practitioner and would like to attend please contact Charlotte Barrow, Marketing Executive at One Crown Office Row on charlotte.barrow@1cor.com stating your name and organisation. Places will be allocated on a first-come-first-served basis.
C- 310/60 Danske Svineproducenter v Justitsministeriet – reference to the European Court of Justice (CJEU) for a preliminary ruling on the Regulation laying down standards for the transportation by road of live vertebrates – read judgment
Some people might disagree with the Appeal Court’s judgment that a life serving prisoner did not have a human right to more than thirty minutes’ daily exercise in the open air (see Matthew Finn’s post on this case). Of course a pig, being transported by road on a journey lasting at least eight hours, is allowed no open air at all. EU law provides that for road vehicles used for the transport of livestock, the internal height of the compartments intended for the animals must be sufficient for them to be able to “stand up in their natural position, having regard to their size and the intended journey, and that there must be adequate ventilation above them when they are in a naturally standing position, without hindering their natural movement”. That’s very good and high minded, one might think, given that the EU has not been known to be at the forefront of animal welfare legislation, particularly in relation to livestock being traded over member state boundaries. But the devil is in the detail… Continue reading →
The latest episode in the soap concerning our relationship with Strasbourg may end in a fizzle rather than a cliffhanger, but it has provoked some useful soul-searching about the vision of the good embodied in the ECHR, and its monopoly on the right to govern social life.
Derogating from the ECHR or even pulling out of Strasbourg altogether have ceased to be taboo subjects for discussion, but the fear seems to be that the consequence of such defection would mean reversion to selfish nationalism. Is this a bad thing?
This question is not as facetious as it seems and answering it is central to the long term maintenance of a set of principles by which states agree to live. Continue reading →
Some of this week’s human rights news, in bite-size form. The full list of our links can be found on the right sidebar or here:
FCO decision on human rights report ‘puts businesses at risk’ – The Law Gazette: The Foreign and Commonwealth Office (FCO) has threatened to cut back on its annual international human rights report. The President of the Law Society has said human rights are an “increasingly a prominent risk factor in business”, but it is not clear what this really means, beyond corporate social responsibility which is at most seems a peripheral business consideration. We questioned earlier this week (see post) whether foreign policy and human rights could or should mix.
Treasury attacked over equality impact of budget – The Law Gazette: More details of the Fawcett Society’s threatened judicial review of the budget, on the grounds that the Treasury did not carry out an appropriate equality impact assessment. Apparently, research by the House of Commons library has shown that 72& of the savings will come from women’s income. See our post on the disappearing Public Sector Equality Duty.
On Monday 25 July, the Court of Appeal refused permission to appeal against a decision to end 12-year old Archie Battersbee’s life support treatment. The decision was stayed for 48 hours – until 2pm on Wednesday – to allow Archie’s parents to apply to the European Court of Human Rights for interim relief. On Tuesday 2 August, the family’s fresh appeal to the Supreme Court, based on ‘new evidence’ of Archie attempting to independently take breaths, was also refused.
Also on Monday, the London Central Employment Tribunal ruled in favour of Allison Bailey, awarding her £22,000 in her discrimination case. The Tribunal found that the barrister at Garden Court Chambers (GCC) had been victimised and discriminated against by her employer for expressing gender critical beliefs. The claim against Stonewall Equality Ltd was dismissed; the LGBT charity worked with GCC, which had joined its ‘diversity champions’ scheme. Ms Bailey accused Stonewall of ‘trans-extremism’.
Thursday 28 July marked a historic moment for the UK’s legal system; for the first time, filming and public broadcasting was allowed in the Crown Court. Cameras recorded Sarah Munro QC sentencing Ben Oliver, who killed his grand-father in January 2021. Her judgement, handing down a life sentence with a minimum term of ten years and eight months, was accompanied by an informative explanation.
Othman (Abu Qatada) v United Kingdom – read judgment| updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
The Strasbourg Court has ruled today that whilst diplomatic assurances may protect a suspected terrorist from torture, he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.
The following summary is based on the Court’s press release.
The applicant, Omar Othman (Abu Qatada), is a Jordanian national, currently detained in Long Lartin prison. He is suspected of having links with al-Qaeda.He arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.
While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act. When that Act was repealed in March 2005, he was released on bail and made subject to a control order under the Prevention of Terrorism Act. While his appeal against the control order was still pending, in August 2005 he was served with a notice of intention to deport him to Jordan. Continue reading →
Dr Hilary Cass, Chair of the Independent Review of gender identity services for children and young people, submitted her final report last Wednesday to NHS England. The Cass Review was commissioned in 2020 to look into the effectiveness of the gender care services provided to young people by the NHS. The report stressed that gender-affirming care is an extremely poorly researched area, and that the “toxicity” of the conversation surrounding transgender identity was severely hampering competent medical care for trans youth. Further research studies commissioned by the review were “thwarted” by the lack of cooperation from NHS gender care services, and the little evidence already available was insufficient to suggest that, in their current state, NHS gender services are producing positive outcomes. The report has made a total of 32 recommendations to the NHS – notably, Cass argues for a more holistic approach to gender care for children, factoring in support for mental health and neurodiversity. Taking a non-partisan stance, Cass noted in her report that ‘for some, the best outcome will be transition, whereas others may resolve their distress in other ways. Some may transition and then de/retransition and/or experience regret. The NHS needs to care for all those seeking support.’ The report follows news last month that puberty blockers will no longer be a routinely available treatment option on the NHS for children with gender dysphoria.
The Government announced last week that they will be closing another 150 asylum hotels by the beginning of May, following the closure of 50 in January and a further 50 by March. Home Secretary James Cleverly stated that the process will ‘keep going until the last hotel is closed’. Concerns have been raised regarding the impact that the asylum hotel closures may have on housing services for local councils – Chair of the Local Government Association, Shaun Davies, has suggested that ‘councils are becoming increasingly concerned over the numbers of asylum seekers presenting as homeless, which is likely to dramatically increase when Home Office accommodation is withdrawn.’ Charity Refugee Council published a report last week revealing that official Government statistics show a 239% increase in the number of households requiring homelessness support from local authorities following eviction from Home Office asylum support accommodation. The Government statement from last week ends: ‘Ultimately, the best way to save money is by deterring people from coming to the UK illegally in the first place, and our partnership with Rwanda intends to do just that’.
The European Parliament voted to pass a new pact on migration and asylum last Thursday. The new laws brought in through the pact have been ten years in the making and are intended to provide a ‘robust legislative framework’ that ‘puts humanity first’. The pact, comprised of a series of 5 closely related laws, was passed by a narrow margin – the laws received an average of 300 votes for to 270 against. The laws cover a variety of issues including biometric data collection, detention regulations, and national security. The pact establishes a system of ‘mandatory solidarity’ between EU member states, seeking implement procedures which will divide responsibility for migration throughout the EU bloc. The pact has already been criticised on both sides of the political spectrum: Amnesty International have claimed the pact will cause a ‘surge in suffering’, while Jordan Bardella, President of France’s far-right party National Rally, called the pact ‘terrible’ and asked voters to give it the ‘worst possible defeat’ when France heads to the polls in June. The President of the European Parliament, Roberta Metsola, admitted that the pact ‘will not solve everything overnight’, but argued that ‘it is 10 giant leaps forward’.
In the Courts
Last Tuesday, the European Court of Human Rights delivered a judgment that, for the first time, held that government climate inaction constituted a breach of human rights under the ECHR. A group of Swiss older women – as part of the activist group KlimaSeniorinnen, Senior Women for Climate Protection – brought the case to the Court. They alleged that Switzerland’s poor climate policies has put them at increased risk of death during heat waves caused by climate change. The judgment confirms that the convention places countries under positive obligations to take effective and timely measures to fight climate change; finding a breach of Article 8 by sixteen votes to one, the Court held that Article 8 confers a right upon citizens to be protected from the ‘serious adverse effects of climate change on lives, health, wellbeing, and quality of life’. The Court also found unanimously that there had been a breach of Article 6 § 1 (access to court) as domestic courts in Switzerland had not taken the complaints of the KlimaSeniorinnen sufficiently seriously. Though the Court also dismissed two other cases making similar arguments for issues of admissibility, six other climate cases previously adjourned can now be fully considered by the Court in light of this historic decision. The case was discussed in more detail earlier this week on the latest episode of Law Pod UK, available here.
The Supreme Court of Arizona ruled last Tuesday that a near-total ban on abortion can come back into force following the repeal of Roe v Wade. The law in question was originally established in 1864 and bans all abortions with no exceptions but to save a woman’s life. It was stated in judgment that the case is only one of ‘statutory interpretation – it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the law’s] constitutionality, which is not before us’. The judges ruled that, in the absence of any legislation restricting the law or authorising abortion, and in light of the repeal of Roe v Wade, the law was enforceable. Despite this, the Supreme Court did delay enforcement for two weeks to allow the plaintiffs to commence further challenges against the law – in particular with regard to its constitutionality – in the lower courts. Katie Hobbs, Governor of Arizona, has come out against the judgment. In an official statement released after the ruling, she stated: ‘I will not let overzealous county attorneys take this as an opportunity to target any individual. As long as I am Governor, no Arizonan will be prosecuted by extremist county attorneys for seeking abortion care’. She has reiterated that an Executive Order she passed last year will continue to stand, which centralises all abortion-related prosecutions to Democrat Attorney General, Kris Mayes, and prohibits Arizona state agencies from assisting in abortion-related investigations.
In a judgment handed down by the Upper Tribunal (Immigration and Asylum Chamber) last week, the Court held that Home Office decisions to refuse to grant family reunion visas to refugees feeling Gaza without biometric checks were ‘irrational and unreasonable’. The applicants had requested their applications be substantively decided in advance of the submission of biometric data, since, as a result of the ongoing conflict, the visa centre in Gaza is not functioning. The nearest centre conducting biometric checks is in Cairo, Egypt. The Home Office policy required that for visas to be approved without biometric data, applicants must prove they face a ‘personal risk of harm, which is separate to the level of risk faced by the wider population’. Jackson J stated that he does ‘not consider that in the context of the conflict in Gaza […] that it is necessary for a person to show that they are specifically targeted to be able to establish that they are at risk due to their personal circumstances.’ The Court thus held that the Home Office policy was a disproportionate infringement on the Palestinian families’ right to private and family life, and thus in breach of Article 8 ECHR.
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
In the week that saw the UK Human Rights Blog reach half a million hits, we welcome you back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. You can also find our table of human rights cases here.
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What: Dignity, Death and Deprivation of Liberty: Human Rights in the Court of Protection 
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – 
In the week that saw the UK Human Rights Blog reach 
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