The environmental implications of the Brexit deal

18 January 2021 by David Hart KC

Most UK people’s 2020 Christmas eves were cheered by the news that we had some sort of Brexit deal – here, in all its majesty. Given the deadline for no deal, some deal, however thin, was a good deal better than nothing, with the ill-tempered chaos between the UK and a major trading partner which would have followed from the latter.

News in the last few weeks has concentrated on some of the immediate supply chain issues (notably fishing) which affect businesses, and whether those issues are long-term and intrinsic in any non-single-market Brexit (my view), or can be ironed out in time (as Leavers say).

But there are other long term issues such as environmental protection which are potentially affected by the deal. These have not really picked up in the media. One exception is the very helpful briefing by Greener UK (a group of the major UK environmental NGOs) – here.

The prism for any analysis of the deal is that it is a Trade and Cooperation deal, and the environmental commitments, such as they are, are tied into trade implications – to retain a level playing field for that trade.

The other thing to remember is that it is a public international law agreement, full of the terminology of such agreements, well trodden by the EU in terms of external agreements, and more generally. Put the other way, don’t read it like an EU directive, let alone a UK statute.

To a seasoned follower of environmental policy in Europe, its terms are like winding the clock back 40-odd years. The initial environmental directives (notably on water and waste in the mid-1970s) had no express Treaty hook on which to be hung. The hook only arrived with effect from the end of 1992, when the Treaty was amended. So environmental policy measures in those early days were couched essentially in trade terms.

So what does the deal (a.k.a the Trade and Cooperation Agreement or TCA) tell us? Here are my first thoughts.

Anemometers, environmental information, and legal advice: the Planning Inspectorate’s duty to disclose?

25 August 2011 by David Hart KC

Case EA/2010/0204 Robinson v. Information Commissioner & Department for Communities & Local Government, First-Tier Tribunal, 19 July 2011

This interesting decision of the First-Tier Tribunal (not linked to this post, for reasons I shall explain below) goes to the circumstances in which a public authority can refuse under environmental information rules to disclose legal advice received by it. All lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest. Under the exemptions in the Environmental Information Regulations  privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.

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The new German social media law – a risk worth taking? An ‘extended look’ by Stefan Theil

19 February 2018 by Guest Contributor

The German Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz) (literally: Law on the improvement of law enforcement in social networks and known as ‘NetzDG’) has attracted much media attention, e.g. here and here, since fully entering into force on 1 January 2018. This was sparked to a significant extent by a few high profile deletions, including a tweet from the responsible Minister for Justice.

This contribution will give an overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a ‘chilling effect’ on free expression are borne out by the evidence. A review of the law and its effects are is planned after an initial three year operation period, which should deliver ample data and regulatory experience while limiting the scope for potential harm.

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The dangers of data snooping – Angela Patrick

6 April 2012 by Guest Contributor

Civil liberties and the coalition have been happily filling the political pages this week. The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings (expertly dissected by Rosalind English earlier in the week) vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security.

These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.

After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.

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Scottish Government’s Named Persons scheme incompatible with Article 8

29 July 2016 by David Scott

The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here

The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).

by David Scott

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No removal without access to solicitor

27 January 2012 by Rosalind English

The Queen on the Application of Medical Justice v Secretary of State for the Home Department  [2011] EWCA Civ 1710 – read judgment

People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim.   The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.

The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed.
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Article 9

1 June 2010 by Adam Wagner

Article 9 | Right to freedom of thought, conscience and religion

Read posts on this Article

Article 9 of the Convention provides as follows:

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 of the EU Charter corresponds to Art.9 ECHR and is subject to the limitations set out in 9(2). This means, in effect, that where Member States are adopting Directives prohibiting discrimination or implementing EU working time rules, they are bound to respect the religious beliefs and activities of their citizens. This also authorises the slaughter of animals without pre stunning to satisfy the demands of Halaal consumers despite the provisions of Directive 93/104/EC on the protection of animals at the time of slaughter. The right to freedom of religion is also associated with the particularly highly protected EU right for individual to move across borders to join religious groups, preach etc.

Art.9 covers the sphere of private, personal beliefs and religious creeds. The Strasbourg authorities emphasise the democratic importance of an open forum of beliefs and opinions; atheists and agnostics may therefore claim the protection of this right (Kokkinakis v Greece (1993)17 EHRR 397).

The Strasbourg Court has accepted the following views and positions as beliefs  under Art.9 :

(1) Veganism: United Kingdom Application No.00018187/91 (1993) Unreported.

(2) Scientology: Sweden Application No.0007805/77 (1979) 16 DR 68.

(3) Kosher diet: United Kingdom Application No.0008231/78 65 DR 245.

(4) Jehovah’s Witness: Kokkinakis v Greece (1993).

The right to freedom of conscience was argued in the right to die cases R v DPP ex parte Pretty  and Pretty v UK following  Sanles v. Spain [2001] EHRLR 348. The argument in both cases was that one’s own freedom to choose the manner and timing of one’s death should not be restricted by legislation fuelled by religious sensitivities. The argument was rejected in Strasbourg: see Pretty (2) for a critique of this element of the judgment. In general, positions taken in relation to politics and ideology do not qualify for Article 9 protection. There is no right, for example, under Article 9 to conscientious objection: Application No.0007705/76 (1977) 9 DR 196. Art.9 only protects actions and gestures that are intimately connected with a creed or belief. In Arrowsmith v United Kingdom (1978) 19 DR 5 the Commission rejected a complaint that the prosecution of the applicant for handing out leaflets to soldiers urging them not to serve in Northern Ireland breached her rights under Article 9. This was a specific action and not a general expression of her pacifist ideals. However the explicit exclusion of non-theistic belief systems by the Court may have to be reviewed in the light of the current inflamed debate about the impact of religion on various freedoms, such as the freedom to marry according to one’s choice, and of course the general freedom of expression.

There is some scepticism about an express right to respect for religion in a largely secular society and recent cases upholding the right to religious practices have attracted strong criticism. When the High Court ruled in May 2011 that a Muslim prisoner could not be disciplined for refusing to give urine for a drugs test because he was in the midst of a voluntary fast  the general view was that the courts were once again cravenly giving way to abusive reliance on human rights by unsavoury characters: see the comments on our report of the case.

Furthermore, the idea that freedom of speech must give way to religious sensitivities under the increasing cloud of offence is becoming a highly contentious issue, made more so by the tensions surrounding Islamic extremism and the murderous attacks in Europe of those deemed offensive to the religion.

Article 9 does not impose a positive obligation on the State to introduce legislation to criminalise blasphemy or, where blasphemy laws are present, there is no duty on public authorities to bring proceedings against publishers of works that offend the sensitivities of any individual or group: Choudhury v United Kingdom Application No.00017439/90 (1991). States which impose conscription will not therefore be in breach of Article 9 if they sanction such objections.

Churches and associations with religious and philosophical objects are capable of exercising Article 9 rights. Profit-making corporations on the other hand cannot rely on Article 9 rights. In Refah Partisi v Turkey  (2003)the Court held that the dissolution of a political party that was held to desire to establish a theocracy was consistent with the ECHR on the grounds that theocracy flew in the face of the liberal and democratic principles of the Convention.

Article 9 does not require active facilitation of religious beliefs in the workplace (Stedman v United Kingdom (1997) 23 EHRR CD 168, although the Strasbourg Court has adopted a more generous approach in Eweida and Others v United Kingdom (2013) by concluding that the applicant’s employer had breached her Article 9 rights by refusing to allow her to wear a crucifix. This was a minor victory however since the Court also decided that a policy requiring employees  to serve all customers irrespective of sexual orientation was a legitimate restriction on religious freedom (this part of the case involved a Christian registrar disciplined for refusing to register same-sex couples and a second involving a marriage therapist dismissed for refusing to counsel same-sex couples). The Strasbourg Court is generally unsympathetic to individual claims for exemption on religious grounds to generally applicable laws; thus, in Pichon and Sajous v France (an inadmissibility ruling of 2001), the conviction of pharmacists who refused on religious grounds to supply contraceptives that had been lawfully prescribed was upheld on the basis of the need to take account of both health policy and the rights and freedoms of others. In Dahlab v Switzerland (2001) the Court upheld the refusal by the authorities to allow a teacher to wear a headscarf, on the basis that the state was entitled to seek to ensure the neutrality of the education system. Beyond the private sphere, therefore, states have a broad margin of discretion in deciding what religious actions and symbols to restrict.

Section 13 Human Rights Act 1998 provides that if a court’s determination of any question might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion under Art.9 , the court must have particular regard to the importance of that right. See Alison Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375 for judicial discussion of the practical effect of this section. However see comments by Laws LJ on the proposal to accord special treatment in the courts to claimants or defendants relying on supernatural backing for their behaviour: McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010)

The freedom of religion also includes a negative aspect, including the rigth not having to manifest one’s religion or beliefs. In the case of Sinan Isik v. Turkey the Strasbourg Court ruled that it was an interference with Art.9 to require a citizen to indicate his religion in his application for an ID card or formally ask for the religion box to be left empty. That in itself, in the Court’s view, violated the Convention.  This presumably covers all forms of state-sanctioned identification documents or registers.

The Human Rights Act 1998 also provides that priests, ministers and officials of any church are excluded from liability under s.6 where they refuse to administer a marriage “contrary to [their] religious doctrines or convictions”.

• Return to Incorporated Rights Index
• Introduction to Human Rights

Is compulsory regulation of the print media compatible with Article 10 ECHR? – Hugh Tomlinson QC

22 August 2012 by Guest Contributor

One of the possibilities being considered by Lord Justice Leveson as he writes the Report for Part 1 of his Inquiry is whether there should be compulsory regulation of the print media.   One, widely discussed possibility is a statutory framework which would require any publisher with turnover or readership above a set threshold to join a “regulatory body”: compulsory regulation for large publishers. 

Will the new criminal legal aid reforms breach the right to a fair trial?

16 May 2013 by Guest Contributor

One of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.

In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?

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Human rights and a divorce or civil partnership dissolution statement

28 February 2022 by Guest Contributor

Statement as ‘conclusive evidence’

The European Convention 1950 guarantees the right to a fair trial. Everyone knows that. At article 6.1 the Convention says:

Right to a fair trial

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…. 

What everyone does not know is what is a ‘civil right’. And in the present context – namely divorce of civil partnership dissolution – do you have a right to query the assertion of your spouse or civil partner that your marriage or civil partnership has irretrievably broken down?

The Divorce, Dissolution and Separation Act 2020 simplifies the divorce and civil partnership dissolution process by changing the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove that, there was no longer any need to establish one or more facts: adultery (marriage only), unreasonable behaviour or living apart for varying periods. One, or both, parties can file a statement of irretrievable breakdown. The procedure for this is likely – no commencement date has been confirmed – to be in force from 6 April 2022. All so far so civilised.

“Keep our kids safe from predators” FB page on the rampage again

25 February 2015 by Rosalind English

CG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment

The plaintiff was a former sex offender who had been identified on a Facebook page run by the second defendant called “Keep Our Kids Safe From Predators 2”. He had been released on licence and he was apprehensive about his safety upon his return to the community.

He resides with his father, who is disabled, and with his adult children one of whom is also disabled. He was particularly fearful of the reactions of others to his conduct in the light of the fact that his name had been published on the internet. I have posted on an earlier case where another former sex offender won an injunction against Facebook Ireland Limited in respect of the original KOKSFP, which was subsequently taken down  (XY v Facebook Ireland Ltd [2012] NIQB 96). 
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Turkish block on Google site breached Article 10 rights, rules Strasbourg

16 January 2013 by Guest Contributor

YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment

In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10.  The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law.  The judgment is available only in French.

He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters.  On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.

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Will genetically-informed medicine upend medical confidentiality?

17 May 2017 by Rosalind English

ABC v St George’s Healthcare NHS Trust and Others [2017] EWCA Civ 336 – read judgment

All the advocates in this case are from 1 Crown Office Row. Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy for the Appellant, and Philip Havers QC and Hannah Noyce for the Respondents. None of them were involved in the writing of this post.

In a fascinating twist to the drama of futuristic diagnosis, the Court of Appeal has allowed an argument that doctors treating a Huntington’s patient should have imparted information about his diagnosis to his pregnant daughter to go to trial.

The background to this case is outlined in my earlier post on Nicol J’s ruling in the court below. A patient with an inherited fatal disease asked his doctors not to disclose information to his daughter. The daughter came upon this information accidentally, shortly after the birth of her child, and found, after a genetic test, that she suffered from this condition as well, which has a 50% chance of appearing in the next generation. Had she known this, she would have sought a termination of the pregnancy. She claimed that the doctors were liable to her in damages for the direct effect on her health and welfare.

A claim for “wrongful birth” is well established in law; no claim was made on behalf of the child, who was too young to be tested for the condition. The twist is the duty of secrecy between doctor and patient, which has held very well for the past two centuries. Short of confessions pertaining to homicide or information regarding contagious diseases, the dialogue behind the consulting door should end there.

The problem is that the typical medical relationship only pertains to the pathology of the individual patient. Now that tests are available that make every single one of us a walking diagnosis not only for our own offspring but those of our siblings and their offspring, the one-to-one scenario collapses, along with the limited class of people to whom a doctor owes a duty of care. The pregnant daughter who came across the information about her father’s condition was not the defendant doctor’s patient. In pre-genetic days, that meant there was no duty of care relationship between her father’s doctors and her. But the certainty of hereditability brings her into that circle.
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Public protest, private rights

6 March 2015 by Dominic Ruck Keene

John Catt. Photo credit: The Guardian

R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9

A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.

However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.

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Does the state owe a duty to inform the wronged? And Ullah revisited

10 February 2013 by David Hart KC

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment 

The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest: 

1. is there a duty on the state to tell someone of their legal rights against the state?

2.  should domestic human rights case law ever go wider than its Strasbourg equivalent?

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