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UK Human Rights Blog - 1 Crown Office Row
Search Results for: environmental/page/49/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum. So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.
First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007. Continue reading →
We recently started addinglinks to interesting new articles and case-law on the right the sidebar under the heading “Selected news sources”.
As of last week, these articles now appear on our Twitter feed (@ukhumanrightsb) and Facebook fan page too. Below is a quick rundown of some of the most recent stories. The full list of links can be found here.
This recent judgment from the European Court of Human Rights arises from the 2012 transfer from Hungary to Azerbaijan of prisoner Ramil Safarov, a member of the Azerbaijani army, following his conviction in Hungary for the murder of an Armenian officer in 2004. In particular, the Court considered Article 2 ECHR (the right to life) in the context of (a) when a state can be held responsible for the actions of an individual carried out in a private capacity, and (b) the obligations on a state who transfers a prisoner to see out their sentence in their home state.
RS’s crimes, transfer and release
In February 2004, Azerbaijani army officer Ramil Safarov (RS) murdered Gurgen Margaryan (GM), one of two Armenian participants in a NATO-sponsored English language programme in Hungary, by decapitating him with an axe while he lay asleep. RS then tried to break down the door of the other Armenian participant, Hayk Makuchyan (HM), allegedly yelling, “Open the door, you Armenian! We will cut the throats of all of you!”, before he was stopped by the Hungarian police.
RS was tried and sentenced in Hungary to life imprisonment, with a possibility of conditional release after 30 years. During the criminal investigation in Hungary, RS gave evidence that he strongly disliked Armenians because he had lost relatives in the Nagorno-Karabakh conflict between the two countries, and that on several occasions during the programme GM and HM had provoked him and mocked both him and the Azerbaijani flag.
Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013 – read judgment
There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months (see my post on this last point) and the permission hurdle to clear.
Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?
The conundrum in this case was – what to do about a set of grounds (drafted by lawyers) filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.
The CJEU ruled on Tuesday that Directive 2002/58/EC (‘the Directive’) precludes national legislation from ordering telecommunication companies to transfer data in a “general and indiscriminate” manner to security agencies, even for purposes of national security. This is following a challenge by Privacy International to UK security agencies over their practices of collecting bulk communications data (BCD).
The ruling could throw up roadblocks to a post-Brexit “adequacy” agreement over the UKs data protection regime. Adequacy is granted to data protection regimes to confirm that they conform to the data protection standards of GDPR, and thus that companies may move data about EU data subjects outside of the EU to those regimes. Recently, the adequacy rating of the US “Privacy Shield” was invalidated by the Schrems II judgment. This ruling could prove to be an analogous issue for the UK’s adequacy rating at the end of the transition period.
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Josef. K the protagonist of Kafka’s novel ‘The Trial’ was an ambitious and successful banker prior to his unexpected arrest. The criminal charges brought against him were never explained because they were beyond the comprehension of all but the most senior judges. Attempting to understand his guilt, consumed K’s every thought – he was distracted at work, subservient to his lawyer and ultimately docile when led to his execution. ‘The Trial’ eloquently argued that transparency is a prerequisite of accountability. In the Age of the Algorithm, Kafka’s novel is now more relevant than ever.
Machine learning algorithms increasingly regulate our lives making decisions about us in finance, education, employment and justice. Ultimately, it will become pervasive in most, if not all aspects of decision making in the foreseeable future. But what is a machine learning algorithm? How does it decide? What rights do data subjects have? This article aims to answer all three of these questions.
Angus McCullough QC is a barrister at One Crown Office Row. Read Part 1 about Anonymity orders in Personal Injury proceedings here.
In Part 1 we looked at the circumstances in which a court may be prepared to grant anonymity in personal injury proceedings, and the applicable principles. In Part 2 I consider practical issues in the drafting of these orders, and problems encountered in this.
In particular, I will suggest that the standard Court Form PF10, that is now frequently being adopted, is generally inappropriate for anonymity orders in personal injury proceedings.
The Law Society of Scotland have sounded the alarm in relation to new Government powers to block an individual’s internet access, and argue that this is likely to amount to a breach of their Human Rights.
The Digital Economy Bill, which has now passed through Parliament and has royal assent, has attracted wide attention in the past few days for a number of reasons. Many have been concerned at the apparent lack of debate in relation to the wide-ranging Bill.
However, a pressing concern amongst internet users has been the proposed new powers for the Government to block an individual’s internet access as a punishment for internet piracy.
The Law Society of Scotland consider that blocking an individual’s internet access would be breach their human rights. They are concerned in particular with the lack of a requirement for a court order before access is cut off, which would amount to a breach of Article 6 of the European Convention. Jim McLean, convener of the Society’s Intellectual Property Committee says:
Harb v. HRH Prince Abdul Aziz Bin Fahd Abdul Aziz, Rose J, [2014] EWHC 1807 (Ch), 9 June 2014 – read judgment
Rosalind English posted in January 2014 (here) on Jones v. the United Kingdom ((judgment here), in which the Strasbourg Court decided that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach Article 6(1) of the Convention (access to court). The Court held that a grant of state immunity reflected generally recognised rules of public international law and so there had been no violation.
The current claim involves a Saudi Prince, and his late father, King Fahd, but its subject matter is very different. Mrs Harb, the claimant, says she married King Fahd secretly in 1969: see the photo of them in happier times. The King agreed to provide for her after their separation, Mrs Harb says, and the Prince was involved in agreeing the details of this. Mrs Harb then brought matrimonial proceedings against the King, whilst alive, which were dismissed on grounds of state immunity. On appeal, the CA (judgment here) decided that these proceedings had come to an end by virtue of the King’s intervening death in 2005.
The present proceedings consisted of a claim for breach of contract in respect of the agreement concluded by the Prince on behalf of his father – said to involve £12m and two large Central London properties. The Prince pleaded state immunity, but this plea was dismissed by Rose J in today’s judgement. Continue reading →
On 11 August, a piece from Professor Richard Ekins KC (Hon) set out a case for the UK denouncing the European Convention on Human Rights (ECHR) and leaving the treaty system altogether. One of the main arguments in favour of this is that it would ‘restore Parliament’s freedom, on behalf of the British people, to decide what our laws should be’. This marks one of the more recent such calls, amid a growing chorus of Ministers in the UK Government and Conservative Party MPs to leave the ECHR. Also, it should be noted that we have been here before. The constitutional aspects of such a move aside, there are particular reasons why it would impact Northern Ireland. While Northern Ireland does not feature in Professor Ekins’ 11 August piece, he has previously written about the interaction between the ECHR and the Good Friday Agreement 1998 (GFA), which underpins the modern devolution settlement in Northern Ireland and which brought an end to a brutal and deadly conflict. This interaction is the subject of this post.
Derogation under the Convention is governed by Article 15 which states:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
A “public emergency threatening the life of the nation” is defined as “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed” (Lawless v Ireland (No 3) App no 332/57 (A/3), [1961] ECHR 2).
Gaunt v OFCOM [2010] EWHC 1756 (QB) (13 July 2010) – Read judgment
The High Court has ruled that OFCOM did not breach a DJ’s freedom of expression rights by finding that he contravened the Broadcasting Code after calling a guest a “Nazi” during an interview on talkSPORT. The decision by the regulator led to the DJ’s sacking.
Jon Gaunt applied for judicial review of the decision by OFCOM that he had breached rules 2.1 and 2.3 of the Broadcasting Code. Liberty supported his claim. He argued that OFCOM’s decision amounted to a disproportionate interference with his freedom of expression and an infringement of his rights under Article 10 of the European Convention on Human Rights.
I have a new project. The aim is to change the face of human rights.
As readers of this blog will know, I often complain about bad human rights journalism. But inadequate reporting is a symptom of a deeper problem: poor public understanding of human rights.
It is time to do something about it. Introducing the Human Rights Information Project (HRIP).
The UK Government has urged Supreme Court justices not to hear the Scottish government’s request for a ruling as to whether it has the power to hold ‘indyref2’ (a proposed second Scottish independence referendum). The request was referred to the UKSC by Lord Advocate Bain, who was not prepared to sign off on the independence referendum bill without a ruling which acknowledges the necessary power to do so. The UK Government has been expressive in its “clear view” that the bill would be beyond the competence of the Scottish Parliament, and that the matter is too “premature” for justices to rule on it. The case is currently in the hands of Lord Reed. If the Scottish Government wins the case, Nicola Sturgeon has indicated that the bill would be introduced promptly so as to allow the vote to take place before October 2023.
The Information Commissioner’s Office has reprimanded the Department of Health for the use of WhatsApp and private emails during the pandemic. The use of these cryptic platforms has meant that information regarding the handling of the pandemic has been lost. The issue was brought before the courts in April, where the claim was dismissed and the practice held to be lawful. This was because the use of such channels of communication did not in themselves breach the Freedom of Information or data protection rules, because sufficient controls were in place to allow the information to be retrieved upon request. The ICO investigation has discovered, however, that “such controls were lacking”. As a result, the Department of Health has been formally required to improve its communications operations so that “public authorities remain accountable to the people they serve”.
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ – indicates the difficulty of the task for the legal system.
Flood v Times: how does this affect calls for libel reform?
On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.
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Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice. 
Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013 – 
Some exciting news.
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ – indicates the difficulty of the task for the legal system.
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