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UK Human Rights Blog - 1 Crown Office Row
Search Results for: justice and security bill/page/18/www.bailii.org/eu/cases/ECHR/1975/1.html
In this case NHS England argued it lacked the power to commission (and be responsible for paying for) preventative HIV drugs. It said this was solely the responsibility of local authorities and, in so doing, disavowed any responsibility for preventative medicine.
The High Court rejected this. It undertook a purposive interpretation of the legislation and found that NHS England had broad and wide-ranging powers of commissioning, and could commission preventative HIV drugs. NHS England is appealing.
The interest in this case extends beyond Mr Justice Green’s interpretation of the particular provisions. The judge was ready to find that the provisions were to be interpreted purposively, and was then very ready to look to the overall objectives and duties of the NHS as expressed in other parts of the relevant legislation, and in the NHS Constitution and Mandate.
There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.
The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.
The appellants’ challenge focused on the alleged participation of undercover MI5 agents in criminality. Particular emphasis was placed upon the infamous killing in 1989 of Northern Irish solicitor, Pat Finucane, who was involved in representing those accused of terrorist activities. Of note, in 2012, the Prime Minister, David Cameron, stated that there was “state collusion” in the murder [17]. This led to a report prepared by Desmond de Silva QC in December 2012, who expressed “significant doubt” that the murder would have occurred without the involvement of “elements of the State”; and suggested that there were “positive actions by employees of the State” to further and facilitate the murder [18].
In this case, the focus of challenge was a policy document issued by the Security Service in March 2011 entitled, “Guidelines on the Use of Agents who participate in Criminality – Official Guidance” (“the Guidance”). This document delineates the Security Service’s procedure for “authorising” the participation in criminal conduct by Covert Human Intelligence Sources. Ultimately, the Court had to determine the legitimacy of this policy by reference to the provisions of the Security Service Act 1989, which was the first piece of legislation to put the activities of the Security Service on a statutory footing. The Service had previously been governed by the Royal Prerogative.
The Investigatory Powers Tribunal (“the Tribunal”) found by a majority for the respondents, but the minority disagreed on the issue of whether the relevant policy amounted to an unlawful de facto power to “dispense” with the criminal law (and therefore also whether it was compliant with the ECHR).
The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.
However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.
The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.
The review was announced shortly after the Coalition Government came to power, on the same day that Sir Peter Gibson’s Detainee Inquiry was launched. In summary, the Government has recommended that controversial Closed Material Procedures and Special Advocates are used more frequently, particularly in civil proceedings. The courts have been reluctant to take this step themselves as any expansion of secret procedures will have significant effects on open justice and the right to a fair trial.
The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.
Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education[2020] EWHC 1786 (Admin).
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.
Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin) – read judgment.
Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.
Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.
Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.
The exterior of the European Court of Human Rights in Strasbourg
In this two-part article, Ruby Peacock,an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.
The first part analysed the history of how such cases have been decided, with particular focus on claims based on psychiatric illness.This second part will examine the recent developments in the law and what these may mean for the future.
The author is very grateful to Greg Ó Ceallaigh and Sapan Maini-Thompson for their insights and comments when preparing this article.
Paposhvili v Belgium
By the time Paposhvili v Belgium came to be considered by the Grand Chamber, the applicant had sadly passed away. Before his death, he faced a proposed removal to Georgia. However, he had been suffering from several medical conditions, the most serious of which was chronic lymphocytic leukaemia. Crucially, the applicant accepted that, because his medical conditions was stable, he did not meet the D criteria. Intervening, the Human Rights Centre of Ghent University argued that the case presented a unique opportunity to ‘depart from the excessively restrictive approach adopted by the Court in N’ (at para 165). In a unanimous verdict, the Court seized upon this opportunity.
As outlined in Jonathan Metzer’s article, Paposhvili expanded the circumstances in which a person could resist removal to a third country on Article 3 grounds to include:
The Guardian published an editorial today arguing that court judgments should be opened up to the public. The editorial challenges the fact that BAILII, the charity which currently publishes most judgments online, is not searchable on Google.
Broadly speaking, it is good to see The Guardian taking up this somewhat esoteric but important topic. As I have argued on a number of occasions (see e.g. Making Law Accessible to the Public) the Ministry of Justice needs to do more to make “raw” law, that is judgments and legislation, accessible online. But it is important to focus on the right issues.
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment
The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).
Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.
Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776 (21 July 2015) – read judgment
In my last post on UKHRB I commented on developments in UK, ECHR and EU jurisprudence relating to procedural fairness in the context of national security.
The developments in this recent case offer some further interesting thoughts on the topic. To explain the case, and put its ramifications in a broader context, this post will be divided into three parts. In the first I outline my original argument as set out in the earlier post. The second will explain the case itself. The third will offer five brief comments on the broader issues the cases touches upon.
In brief, the court in Kiani followed Tariqand held that AF-type disclosure (see below) was not a universal requirement of fairness; the interests of justice could require a lower standard of disclosure without violating the absolute right to a fair hearing. Continue reading →
Welcome back to your weekly helping of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
The biggest news of the week was the leak of the Draft Brighton declaration, the UK’s proposals for the reform of the European Court of Human Rights. In other news, a spotlight finally began to shine on the Government’s Justice and Security Green Paper, with the Daily Mail suggesting that it might do anything but promote justice and security.
Welcome back to the UK Human Rights Roundup, your weekly dose of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Thanks to the Jubilee, it was a short week for most of us but there was still plenty happening in the world of human rights. Hot topics included the criminalisation of forced marriage and the UK’s second UPR, and as usual the debate surrounding the Justice and Security Bill rages on. And, today the Home Secretary will unveil her plans to persuade judges to alter how they interpret Article 8 of the European Convention on Human Rights.
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The decisions by the Grand Chamber of the European Court of Human Rights in 
The Cabinet Office has released its long awaited (by this blog at least) 
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin) – 
The Guardian 
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – 
Welcome back to your weekly helping of human rights news. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your weekly dose of human rights news. The full list of links can be found 
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