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A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment
The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.
This case involved a claim under the Human Rights Act 1998 for damages for breach of Article 8 of the European Convention. The Claimant was a young mother who had taken her baby into hospital when she was worried he appeared to have episodes when he stopped breathing. The baby was admitted to hospital and the medical assessment was there was nothing wrong with the baby. The paediatrician was concerned that the mother, having reported incidents that were not observed by medical staff, might be suffering from factitious illness, i.e. that she was deliberately fabricating the symptoms. He alerted social services who held a meeting on 29 December.
Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.
This is the third in a series of posts on the Court of Appeal’s recent judgment. The full background to the case can be found in my earlier post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here, and Alistair Henderson’s analysis of whether the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings here.
This post concerns the extent of any obligations imposed on the UK to investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose from two individuals whom had been captured by British forces in Iraq claimed they were transferred to American custody and subsequently ill-treated. The Article 5 issue arose from the detention by British forces in Iraq of several individuals who claimed to have had their Article 5 rights violated whilst in British custody.
Around 150 delegates, including representatives of all 47 Council of Europe states and two judges of the European Court of Human Rights, met in Oslo last week. Their mission? To reflect on the protracted process of reforming the European Convention system and imagine what it might look like in 2030.
Non-government organisations and academics (myself included) joined the insiders to engage in ‘blue-skies’ thinking, despite the dense fog that enveloped the hilltop venue.
The end of the beginning
The Strasbourg Court as we know it came into being in 1998 with the entry into force of Protocol 11 to the Convention. Subsequent reform was driven by two closely-linked imperatives: first, to reduce the backlog both of applications and non-executed judgments and secondly, to reinforce the subsidiary role of the Court vis-à-vis national authorities.
As regards the former, notable developments include the steps taken since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more controversially) the introduction of a shorter deadline, narrower admissibility criteria, and stricter conditions for applicants. The post-judgment process of implementation was also reformed to permit more intensive supervision by the Committee of Ministers (the Council of Europe’s executive arm) of urgent, complex or inter-state cases and lighter touch supervision of the rest. Continue reading →
JX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment
Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.
For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties.
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?
The appointment of Ken Clarke as the new Justice Secretary may have saved the Human Rights Act 1998 from repeal. The Conservative plans for the Act to be replaced with a Bill of Rights may be scrapped in any case under the full terms of their agreement with the Liberal Democrats. In the mean time, supporters of the Act will be encouraged by supportive statements by the new Justice Secretary.
The policy agreement between the two parties has now been published, and the Human Rights Act is notable by its absence under section 10, entitled “Civil Liberties”, which promises to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion“. What the agreement does promise, amongst other things, is the scrapping of the ID card scheme and the Contact Point Database, extending the scope of the Freedom of Information Act and protecting the right to trial by jury. There will also be a “Great Repeal” or “Freedom” bill.
No withdrawal from the European Convention
Whilst the Human Rights Act is not mentioned in the document, its supporters will take heart at the new Justice Secretary Ken Clarke’s comments on today’s BBC The World At One. He said ”We are not committed to leaving the European Convention on Human Rights, we have committed ourselves to a British Human Rights Act. We are still signatories to the European Convention on Human Rights”. He continued that he has “also got to see when the coalition agreement is completed how high a priority this is going to be given.”
Whilst he may have hedged his answer, Mr Clarke gave an even clearer indication of his views in 2006, when David Cameron first announced his plans to repeal the Human Rights Act. He said that “I think he’s going to have a separate task force on the Bill of Rights, isn’t he? He’s going out there to try to find some lawyers that agree with him, which I think will be a struggle myself.” Even more strikingly, he went on to describe the presentation of the Act as a foreign invention to be “anti-foreigner” and that “I think the Convention of Human Rights was written by a Conservative lawyer after the war. It was a British document“.
Ken Clarke, well known within his party as a fan of European integration, is to be the new Lord Chancellor and Secretary of State for Justice. Like his predecessor Jack Straw, he started out as a barrister and became a QC in 1980 whilst he was already part of the Thatcher Government. His views will be key in shaping the new Government’s policies towards civil liberties.
Safety for the 1998 Act?
The coalition partners have opposing policies towards the Human Rights Act, and the policy agreement suggests that these remain. In their manifesto, the Conservative Party pledged to repeal the Human Rights Act, a key early New Labour reform, and replace it with a Bill of Rights. The form and content of the Bill has remained deliberately vague. By contrast, the Liberal manifesto promised to “ensure that everyone has the same protections under the law by protecting the Human Rights Act.”
Of course, Mr Clarke’s 2006 comments do not necessarily reflect his views now, and his word will not be final when it comes to policy. Further, it is notable that the Act’s repeal, a well publicised plank of the Conservative Party manifesto, has been left out of the draft policy agreement. Given that the civil liberties section is fairly detailed, this is probably deliberate. It may be that a Bill of Rights in some form is still on the policy agenda, perhaps to work in tandem with, rather than as a replacement to, the Human Rights Act.
It is also notable that the Liberal Democrats’ longstanding policy to introduce a written constitution, which some commentators argue would be the best way of enshrining and protecting the Human Rights Act in future, is also absent from the policy agreement.
However, on balance it seems likely that the new Justice Secretary’s pro-European outlook and past comments, an addition to the Liberal Democrats’ manifesto commitment to protect the Human Rights Act, puts the Human Rights Act in a far stronger position than it would have been in the face of Conservative majority parliament.
This week’s Round-up is brought to you by Hannah Lynes.
In the news
Call from legal community for urgent action on refugee crisis
More than 300 lawyers have signed a statement denouncing the Government’s response to the Syrian refugee crisis as “deeply inadequate”.
The document, whose signatories include former President of the Supreme Court, Lord Phillips, three former Law Lords and over 100 Queen’s Counsel, describes Prime Minister David Cameron’s offer to resettle 20,000 Syrian refugees over 5 years as “too low, too slow and too narrow.” Continue reading →
Johnson’s promise to support the LGBTQ+ community also came after the first meeting of the Ban Conversion Therapy Legal Forum, a group of lawyers, academics, cross-party MPs and campaigners, chaired by Baroness Helena Kennedy. The group released a statement advising the government that the “best way of banning conversion therapy is by using a combination of both civil and criminal remedies” and that the legislation “must be human rights compliant”, prioritising the rights of victims and potential victims. The Forum acknowledged a ban might impact certain other rights including freedom of religion and belief and freedom of expression, but said the harm caused to LGBTQ+ people, which “amounts to degrading and inhuman treatment”, justified a proportionate restriction of those rights.
In other news:
The All-Party Parliamentary Group on Democracy and the Constitution released a report on its independent inquiry into whether the rights to freedom of expression and peaceful assembly were respected in the policing of the Clapham Common vigil for Sarah Everard on 13 March and the “Kill the Bill” protests in Bristol from 26-29 March. The report, published 1 July, found that the Metropolitan Police Service (MPS) and the Avon and Somerset Constabulary (A&SC) “failed to understand the nature of the right to protest and how it must be applied in practice” and that their use of power “exacerbated tensions and increased the risk of violence”. The APPG recommended a new statutory code for the right to protest and policing of protests; removing clauses 55-61 of the Police, Crime, Sentencing and Courts Bill; and a consultation on the creation of an Independent Protest Commission.
Abortion reform in Northern Ireland has had a fraught history, to say the least. Matters appeared to finally come to a head when in 2019, the UK Parliament enacted the Northern Ireland (Executive Formation etc.) Act 2019 (2019 Act), which created a duty on the Secretary of State to implement abortion reform by following the report of the Committee on the Elimination of Discrimination of Women (CtteEDAW). Nearly two years and two statutory instruments later, Stormont finds itself mired in fresh controversy as long-term abortion facilities in Northern Ireland have yet to be commissioned. So the obvious question arises: what happened?
The route to legal change
At the outset, it should be remembered that when abortion reform was enacted in Great Britain in 1967, it was not extended to Northern Ireland – which was, at that time, the only devolved administration in the UK (with healthcare firmly devolved to Stormont). Nor was abortion reform extended to Northern Ireland when Direct Rule began in 1972. Until 2019, abortions were mostly illegal under sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The only exception to this sweeping regime was the so-called “Bourne exception”, derived from the summing up of evidence in the criminal case off in which Mr Justice Macnaghten had said that an abortion may be lawfully carried out “in good faith for the purpose only of preserving the life of the mother”.
A major review by David Norgrove into the family justice system has been published today. You can find the report here or reposted below via Scribd.
The 225-page Family Justice Review was commissioned jointly by the Ministry of Justice, the Department for Education, and the Welsh Assembly Government. It aims to “improve the system so that it is quicker, simpler, more cost-effective and fairer whilst continuing to protect children and vulnerable adults from risk of harm.” The full terms of reference can be found here.
Professor Richard Moorhead points out that the report makes “measured but telling criticisms of the legal aid proposals” which might be “sophisticated civil servant speak for, “There’s a fast train coming…. better get us off them tracks.””
The BBC highlights the report’s criticism of family justice delays and recommendation that all childcare decisions should be made within six months.
The Guardian, amongst others, picks out the lack of a recommendation (contrary the interim report – see para 108) for fathers to be granted a legal right to guarantee that their child has “a meaningful relationship with both parents”.
It’s time for 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.
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 →
R (on the application of Dennis Gill) v Secretary of State for Justice – Read judgment
The Secretary of State for Justice should have done more to enable a prisoner with learning difficulties to participate in programmes which could have helped him gain an earlier release. In finding that the prisoner was discriminated against, the High Court has set down a precedent which will affect many other learning disabled prisoners.
Mr Justice Cranston held that participation in offender behaviour programmes would have made it easier for Mr Gill to persuade a Parole Board that he was suitable for release. His participation in them had been recommended but his learning difficulties had prevented him from taking part, and as such the Secretary of State for Justice had discriminated against him contrary to the Disability Discrimination Act 1995.
The Director of Public Prosecutions has told the Society of Editors that more court hearings should be televised. The Ministry of Justice have responded by saying that they are considering changes but would want to consult the senior judiciary before making any “firm proposals”.
Starmer is right to say that “shining a light on the workings of the court room can only serve to boost its efficiency and effectiveness”. But before spending time and money opening up more courts to cameras, footage from the supreme court, which is already filmed at great expense, should be made more widely available.
The Home Office has published a domestic violence consultation response and draft bill as part of a landmark overhaul of domestic abuse laws. Theresa May promised an overhaul almost two years ago, and the bill was a key pledge in the 2017 Queen’s Speech.
The bill introduces the first statutory definition of domestic abuse, which encompasses financial and emotional abuse as well as coercive and controlling behaviour. It would prohibit perpetrators from cross-examining their victims in court, impose polygraph tests on high-risk offenders as a condition of release, and create new powers to force perpetrators into rehabilitation programmes. Among other new protections for victims, the bill would make domestic abuse complainants automatically eligible for special measures in the criminal courts. It would also establish a new “office of the Domestic Abuse Commissioner” tasked with improving response and support for victims across public services.
Domestic violence is a major human rights issue which can deprive women of their rights to health and physical and mental integrity, freedom from torture, inhuman and degrading treatment, and the right to life. The bill has been welcomed by some as a significant step towards combatting the issue . However, writing in the Guardian, Julie Bindel criticises the new measure as “impossible to implement” and likely to be “misued by vindictive men” and “misunderstood by those tasked with protecting women”.
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A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment
One of the most contentious proposals in the 
The Director of Public Prosecutions 
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