We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
UK Human Rights Blog - 1 Crown Office Row
Search Results for: justice and security bill/page/29/www.bailii.org/eu/cases/ECHR/1975/1.html
Amendments to CPR r.39.2; new Guidance issued by the Master of the Rolls; and a recent High Court decision refusing anonymity to a claimant prompt this review of anonymity orders in personal injury proceedings.
You act for someone who is vulnerable as a result of a serious brain injury. Her claim has been settled, and as a result your client is due to receive a large award of compensation, of several million pounds. The Court’s approval of the settlement is required (under the Civil Procedure Rules r.21.10). There is a concern that if there is publicity about the award your vulnerable client will be targeted and exploited by unscrupulous individuals. However, principles of open justice, and rights under Article 10 (freedom of speech), are engaged and favour unrestricted reporting of court proceedings.
IS (by the Official Solicitor as Litigation Friend) v The Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin) (15 July 2015) – read judgment
Collins J has ruled that the Legal Aid guidance as to whether to provide exceptional funding in certain cases is so rigid and complicated as to be unlawful.
Although no declaration has been made in terms, he said that the scheme as operated was “not providing the safety net promised by Ministers and is not in accordance with [the relevant statute] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”
The actual case before him concerned a defendant who had in fact been granted legal aid consequent to an earlier decision by the Appeal Court. There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of Exceptional Case Funding under Section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before the same judge, Collins J, and on 13 June 2014 he granted judicial review in each of the six cases. His decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases were reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor (read my previous post on the Court of Appeal’s decision). Continue reading →
In recent years, a constant feature of debate about the future of the European Court of Human Rights has been the backlog of applications that threatens to engulf it. At its height, in September 2011, this backlog reached the dizzying figure of more than 160,000.
The accumulation of applications has been the basis of the argument both by politicians (such as David Cameron) and figures formerly associated with the Court (such as Luzius Wildhaber) that the Strasbourg system should be fundamentally reformed so that it would deliver far fewer judgments relating only to large-scale violations, structural problems, or important questions of the interpretation and application of the European Convention on Human Rights.
Such reform would mean drastically curtailing the right of individual petition, which for decades has been the cornerstone of the Convention system (and of other regional human rights mechanisms that have emulated the ECHR model). Yet if the backlog was to be significantly reduced – or eliminated – the foundation of the argument that the Court requires root-and-ranch reform to avoid collapse would, by the same token, disappear. Figures presented last week by the Registrar of the Court, Erik Fribergh, suggest that this scenario is now not only possible, but likely.
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated
In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention.
The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.
Jones v. Canal & River Trust [2017] EWCA Civ 135 – 7 March 2017 – read judgment
In recent years, the Courts have come up with a pragmatic resolution to the clash of property and Article 8 rights which typically occur in housing cases. Where the tenant is trying to use Art.8 to fend off a possession order, because he is in breach of some term of the tenancy, then the Courts, here and in Strasbourg, have resolved the issue in the favour of the local authority, save in exceptional circumstances.
But the current case of a canal boat owner raises a rather different balance of rights and interests – which is why the Court of Appeal evidently found the issue a difficult one to decide.
This post is adapted from a speech given by Judge Robert Spano of the European Court of Human Rights at Chatham House on 13 October 2014. It is reproduced here with permission and thanks.
There is currently a vigorous debate in the UK on the status and future of the European Convention on Human Rights in national law and also on the relationship between my Court, the Strasbourg Court (ECtHR), the UK Parliament and the domestic judiciary. In principle, democratic debates on such fundamental issues should always be welcome. Indeed, discussions on the role and functions of institutions of public power lie at the core of the democratic concept. It is therefore essential for the Court and its judges to engage in reasoned and informed debate about their work and its wider European implications.
How Does the ECtHR Discharge Its Mandate?
I have been asked to discuss the question of how the Strasbourg Court discharges its mandate. To give an answer, one must first respond to the fundamental question: What is the Court‘s mandate?
Welcome 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 can be found here. You can also find our table of human rights cases here and previous roundups here.
by Wessen Jazrawi
In the news
BAILII
First, a plea from the Pink Tape family law blog to donate to BAILII, particularly if you run a blog that links to BAILII or if you are a lawyer who relies on BAILII for transcripts, or to simply do their online survey: BAILII – Pink Tape. This blog would not exist without the excellent service provided by BAILII – please help them by donating and doing the survey.
Wilton Park
The report from the Wilton Park conference, where the good and great of Europe met to discuss the future of the European Court of Human Rights, has been published. Suggestions included requiring individuals to show that non-examination of the case would cause a “significant disadvantage” and introducing a “universal periodic review” procedure, such as that used by the UN. It was recognised that national implementation was by far the biggest challenge that the system faced. The full report can be found here.
In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
The first part explored whether coroners should have jurisdiction to investigate stillbirths.
This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?
For a brief introduction to Aisha Cleary’s case, please see Part 1.
Article 2 ECHR rights in utero
Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]
There is little we can do to prevent the cuts. But a shrinking justice system could have an unintended consequence: it may inspire lawyers to take a more activist approach in promoting access to justice, and to find creative ways of bringing the public closer to the law.
Julian Assange, the founder and head of Wikileaks, has succeeded in an initial challenge to last week’s refusal to grant bail in his extradition case. And, in an appropriate nod to the internet age, the judge granted two people the right to tweet from the court.
The tweeters (definition: users of Twitter, a social website which allows people to post 140 character messages to people who chose to follow them) are Alexi Mostrous, a Times special correspondent, and Heather Brook, a writer. Mostrous tweeted at 14:30:
judge just gave me explicit permission to tweet proceedings “if it’s quiet and doesn’t disturb anything”. #wikileaks
Angus McCullough QC and Jeremy Johnson QC at the JCHR
The overwhelming majority of Special Advocates have responded to the Justice and Security Bill by stating that the case has still not been made by the Government for the introduction of closed material procedures in other types of civil litigation. The full response is available here (PDF).
Fifty Special Advocates have signed the response. This represents an overwhelming consensus of those with substantial experience of the current system of secret hearings.
They accept that the new restriction to national security cases is an improvement, but retain the view expressed in their initial response to the Green Paper consultation, that:
CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.
In addition to undertaking a comprehensive review of the AF-disclosure case law, Chamberlain J also rejected the notion of some form of an intermediate level of disclosure in closed material proceedings, where the AF-disclosure threshold is not met. The decision offers some much-needed clarity in this area of law.
In Soltany and Others v SSHD [2020], the High Court dismissed a challenge to the conditions at Brook House Immigration Removal Centre (IRC), which at the material times in 2017 and 2018, was run by G4S.
The claim for judicial review, which was brought by three individuals of Afghan origin, principally contended the night-time lockdown regime, pursuant to which detainees were locked in their rooms overnight from 9pm to 8am, was both “unnecessary and unduly harsh” [2].
Additionally, two of the claimants argued that the combination of the night state, which meant that observant Muslims had to perform some of their daily prayers in their rooms, and the conditions of the rooms (especially the proximity of the toilet) amounted to unlawful religious discrimination.
In a complex judgement extending to over 400 paragraphs, Cavanagh J refused the application on each ground. First, the Court held that Brook House’s overnight lock-down regime and room conditions are compatible with both ECHR Articles 5 and 8. Second, the Defendant did not act contrary to either the common law or Article 5 in failing to give reasons for the allocation of detainees to specific removal centres. Third, there was no religious discrimination under ECHR Article 9, either read alone or together with ECHR Article 14. Nor was there any indirect discrimination contrary to section 19 of the Equality Act 2010.
Tucked away on page 48 of the Conservative Party 2019 election manifesto, the following passage could be found in a section entitled “Protecting our Democracy”:
After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.
That is something of a laundry list of many of the most charged constitutional issues faced by the United Kingdom. But of all the matters cited, the one which has received perhaps the most attention of late is the Government’s apparent intention to consider changes to our system of judicial review.
Today’s Mail on Sunday reports that the Home Secretary is to announce “soon” that the Conservative Party’s election manifesto for 2015 will include a pledge to withdraw from the European Court of Human Rights if the party obtains an overall majority.
I thought it would be useful to answer a few basic questions about what this would might mean for the UK. Bizarrely, the article appears alongside the Prime Minister’s opinion piece in the Sunday Telegraph promising that his party would not “veer right” and also “stick to the course we are on“. Talk about mixed messages. Anyway, let’s concentrate on Strasbourg. For a basic introduction to the Court and what it does, see my recent post: No, The Sun, the Human Rights Act is not the EU and David Hart QC’s A bluffer’s guide to human rights courts.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
In recent years, a constant feature of debate about the 
This post is adapted from a speech given by Judge Robert Spano of the European Court of Human Rights at Chatham House on 13 October 2014. It is reproduced here with permission and thanks.
Welcome 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 can be found 
A sense of doom is gripping the legal profession in the face of significant
Today’s 
Recent comments