Munira Ali: Examining the dissolution of the Joint Committee on Human Rights’ inquiry into mental health and deaths in prisons: another missed opportunity?

7 June 2017 by Guest Contributor

The issues relating to imprisonment of individuals with mental health problems in the UK has attracted considerable attention, as the number of self-inflicted deaths has risen to the highest number since records began in 1978. With a rate of one prison suicide every three days, the director of the Howard League described the current rate as having reached “epidemic proportions”.  The steady rise of deaths in custody has prompted a series of inquiries in recent years, and has drawn scrutiny from UN bodies and Special Procedures, and more recently, UN Member States as part of a periodic review of its human rights performance. However, despite this, little progress has been made.

In view of this reality, the Joint Committee on Human Rights launched an inquiry into mental health and deaths in prison in 2016 in order to determine whether a human rights based approach can help to prevent deaths in prison of individuals with mental health conditions i.e. one that satisfies acceptable standards as laid down by national and international human rights law, and recognises the particular position of vulnerability in which detainees are placed. The inquiry specifically looked at why previous recommendations had not been implemented. To this end, the Committee received both oral and written evidence from authors of the various domestic inquiry reports and individuals whose lives have been directly affected by the issue, including relatives of individuals who had committed suicide in prisons.

However, the inquiry was unexpectedly cut short as a result of the decision to call a snap election.

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Round Up: Brexit and Barrymore both make appearances in a busy week…

17 December 2018 by Thomas Hayes

This week the eyes of the United Kingdom, and quite possibly the whole of Europe, were trained on Luxembourg for an eagerly awaited judgement from the Court of Justice of the European Communities. However, before we embark on a lengthy and forensic analysis of the German/Slovakian case of AlzChem v Commission (State aid – Chemical industry – Judgment) [2018] EUECJ T-284/15 (13 December 2018), we should pay some attention to the week’s legal Brexit developments…

The CJEU this week delivered judgement in the case of Wightman and Others – (Notification by a Member State of its intention to withdraw from the European Union – Judgment) [2018] EUECJ C-621/18 (10 December 2018). The case had been referred to the Luxembourg court by the Inner House of the Court of Session and addressed the feasibility of unilateral revocation of Article 50 TEU. The UK government sought to have the application ruled inadmissible on the grounds that the question posed was hypothetical, no such revocation of Article 50 having been attempted or even contemplated. The European Council and Commission meanwhile contended that although revocation was possible, the right was not unilateral. They appeared to fear abuse of Article 50 by member states who could unilaterally seek to terminate their membership of the European Union, revoke that termination and then repeat the exercise as necessary to circumvent the two-year time limit imposed by Article 50 on withdrawal negotiations.
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Detention pending deportation without regular review breaches Article 5 of the Convention

10 April 2013 by Rosalind English

Abdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment

The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.

The following summary is based on the Court’s press release:

The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation.
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Misleading Media, Immigration Snakes and Ladders and Human Rights Endurance – The Human Rights Roundup

14 October 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular full brass band of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week, Lord Neuberger implied that even if the Human Rights Act were to be abolished, the court would continue to uphold human rights, perhaps foreshadowing the Supreme Court’s decision in Osborn. Meanwhile, the controversial Immigration Bill  now has its overarching documents available, LSE are looking to create a written constitution and the Daily Mail are in trouble, again.

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The Weekly Round-up: Family reunification scheme for Afghan refugees, world’s first AI regulation and puberty blocker ban lawful

5 August 2024 by Emilia Cieslak

In UK news

The Minister for Immigration and Citizenship, Seema Malhotra has announced the opening of the Afghan Citizens Resettlement Scheme Pathway 1 Stage 2: Separated Families. This is a reunification scheme for families separated during Operation Pitting. This was the operation in which vulnerable people such as the LGBT community, women’s rights activists and judges were evacuated from Kabul by the British government after the Taliban takeover of Afghanistan in August 2021. Persons resettled in the UK can submit an “expression of interest” to be reunited with a spouse or unmarried partner or their dependent children aged under 18 at the time of the evacuation. Children separated from their parents during the evacuation can apply to be reunited with their parents and siblings aged under 18 at the time of the evacuation. The Scheme is open now and the deadline to submit an “expression of interest” is 30 October 2024. 

The Secretary of State for the Home Department, Yvette Cooper has announced that the Migration Advisory Committee (MAC) has been asked to review, among other things, the minimum income requirement for family and partner visas. The minimum income requirement rose from £18,600 per year to £29,000 per year in April 2024, and it is planned to rise to £34,500 later this year and £38,700 in 2025. The Home Secretary stated that the MAC review will make sure that the Immigration Rules “balance a respect for family life whilst also ensuring the economic wellbeing of the UK is maintained”. The campaign group Reunite Families UK has launched a legal challenge against the planned rise to £38,700 per year, arguing, among other things, that it will disproportionately impact women, members of ethnic minorities and young people. 

In international news

As the civil war in Sudan continues, reports are coming out regarding famine and mass sexual violence. The UN’s World Food Programme (WFP) has identified 14 areas at risk of famine, including conflict hotspots Darfur and Khartoum. The WFP estimates that 26 million people, more than half the population, are now facing acute hunger and 755,000 people are facing catastrophic conditions with deaths caused by starvation already being recorded. Human Rights Watch has published a report documenting widespread rape and sexual abuse committed by the warring parties, in particular the Rapid Support Forces, with local healthcare providers reporting survivors of sexual violence between the ages of 9 and 60. An explainer on the origins of the conflict is available here.

On 01 August 2024, the EU AI Act (also known as Regulation 2024/1689), the world’s first piece of legislation on artificial intelligence, entered into force. The act splits the different uses of AI into four categories each with a different level of regulation. Category one are video games and spam filters which pose minimum risk and so are not regulated. Category two are chatbots, deepfakes and other uses which present issues regarding transparency. The regulation will require developers to make sure users are aware that they are interacting with AI. Category three are high risk uses such as transport, marking exams, recruitment and granting of loans, which will be strictly regulated. Category four are unacceptable risk uses such as social scoring, predictive policing, emotional recognition and cognitive behavioural manipulation, which are banned in their entirety under the act. The bans on prohibited practices will be applied in the first six months of the Act being passed, and the other regulations will be brought in over the next two years. 

The International Criminal Court has allowed individuals and states to submit amicus curiae briefs regarding its upcoming decision whether or not to issue arrest warrants for Israeli PM Benjamin Netanyahu and Israeli Minister of Defence Yoav Gallant. The UK was the first state which declared that it would provide a brief arguing against the issuing of an arrest warrant, however, the government has since announced that it will be dropping their challenge. All amicus curiae briefs regarding this matter are available here. The UN Human Rights Office has published a report regarding arbitrary and prolonged detention of Palestinians by the State of Israel. Detainees report abuse including blindfolding, deprivation of food, electric shocks, being burnt with cigarettes and sexual violence against both men and women. 

American journalist Evan Gershkovich has been released by Russia in the biggest prisoner swap between the USA and Russia since the Cold War. In March 2023, Gershkovich was arrested by Russia’s Federal Security Service on espionage charges and sentenced to 16 years in prison. His arrest and subsequent sentence was condemned by leading human rights organisations and UN Special Rapporteurs on human rights in the Russian Federation and the right to freedom of opinion and expression. The prisoner swap saw the release of 16 people from Russia, including influential opposition figure Vladimir Kara-Murza, journalist Alsu Kurmasheva and activist Sasha Skochilenko who was sentenced to seven years in a penal colony for affixing anti-war stickers on supermarket shelves as a form of protest. The USA released Russian detainees including Vadim Krasikov, a hitman who worked for Russia’s Federal Security Service.

In the courts

The High Court has ruled that the emergency ban on the use of puberty blockers as medication for trans children through private and EU prescriptions is lawful. The campaign group TransActual and an anonymous 14-year-old trans girl now unable to access puberty blockers, sought to challenge the ban arguing, amongst other things, that the Secretary of State did not have sufficient medical evidence to institute the ban. The court held that the Secretary of State was entitled to rely on the Cass Review, which recommended a clinical trial to determine the effects of puberty blockers, and held that “this decision required a complex and multi-factored predictive assessment, involving the application of clinical judgment and the weighing of competing risks and dangers, with which the Court should be slow to interfere”. The court also dismissed arguments that the ban was introduced with an unfair failure to consult and arguments based on Article 8 ECHR.  In response to the ruling the British Medical Association (BMA), the trade union and professional body for doctors and medical students in the UK, has called for a pause in the implementation of the Cass Review and questioned the “weaknesses in the methodologies used in the [Cass] Review”. 

Tiny cells, violence and language barriers: the life of a European prisoner?

22 June 2011 by Isabel McArdle

The European Commission has begun a consultation process to explore the impact of pre-trial detention in the European Union (EU). The particular focus, summarised in its Green Paper, is how pre-trial detention issues affect judicial co-operation generally within the EU.

The issue is being debated at the moment in the UK, with a group of MPs urging an overhaul to international extradition rules. The Joint Committee on Human Rights has published its report on The Human Rights implications of UK extradition policy (read summary here), in which it concludes that the current statutory framework does not provide effective protection for human rights.

The EU has an interest in these questions, given the fundamental rights which is seeks to uphold. Article 4 of the EU Charter mirrors Article 3 of the European Convention on Human Rights, prohibiting torture and inhuman and degrading treatment.

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Vicarious liability: The Supreme Court speaks

8 March 2016 by Kate Richmond

Two important Supreme Court judgments concerning vicarious liability were handed down last week.

Mohamud v WM Morrison Supermarkets [2016] UKSC 11 affirms the “close connection” test set out in Lister v Hesley Hall Ltd [2001] UKHL 22 and rejects the formulation of a new test for vicarious liability based on “representative capacity”.

Cox v Ministry of Justice [2016] UKSC 10 extends the sorts of relationships where a defendant can be made vicariously liable for the conduct of an individual and evaluates Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (the ‘Christian Brothers’ case)

The two judgments are intended to be complementary; Mohamud addresses the relationship between the defendant and the wrongdoer while Cox centres on the sufficiency of connection between that relationship and the wrongdoer’s act such that the defendant can be held vicariously liable.

Mohamud

The claimant was assaulted at a Morrisons petrol station by an employee, Mr Khan. The claimant had entered the petrol station and had enquired about using printing facilities. Mr Khan responded using foul, racist and threatening language before following the claimant out ino the forecourt where Mr Khan punched and kicked him.

The Court of Appeal found that there was not a sufficiently close connection between what Mr Khan was employed to do and his tortious conduct so as to give rise to vicarious liability on the part of Morrisons. The “close connection” test was applied as laid down by Lord Steyn in Lister.

Lord Toulson gave the leading judgment in Mohamud. He surveyed the origins and development of vicarious liability and explored the possibility of a new, broader test based on “representative capacity”. The new test was dismissed by the court, it being unclear whether the “representative capacity” approach was substantively different to the “close connection” test [46,53]. However, the judgment provides a clear exposition of the developments and shortcomings in the law on vicarious liability.

Lord Touslon draws together various authorities to identify the underlying public policy rationale for vicarious liability, first enunciated by Holt CJ in Boston v Sandford (1691) 2 Salk 440 [17]. It was described by Scarman LJ in Rose v Plenty [1976] 1 WLR 141 at p148 as follows:

“But basically, as I understand it, the employer is made vicariously liable for the tort of his employee… because it is a case in which the employer, having put matters into motion, should be liable if the motion which he has originated leads to damage to another”

Lord Touslon examined the second limb of the Salmond definition of vicarious liability (Salmond, J.W (1907) The Law of Torts London: Stevens & Haynes). The second limb relates to “unauthorised modes of authorised acts” which was unsatisfactorily applied to cases such as the Lister case concerning sexual abuse.

The Supreme Court preferred a broader approach and endorsed the dicta of Lord Cullen in Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co (1925 SC 796, 802). Lord Cullen considered whether the tortious conduct was “within the field of activities” assigned to the employee.

The thrust of the Supreme Court’s analysis in Mohamud case was: 1) the nature of the employee’s job was to be considered broadly; and 2) the court ought to examine whether there is sufficient connection between the employee’s position and his wrongful conduct to make it just for the employer to be held liable [44].

Lord Toulson then addressed the imprecision of the close connection test quoting from Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, who pointed to:

‘…the lack of guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer… this lack of precision is inevitable, given the infinite range of circumstance where the issue arises.’

Lord Touslon concluded that courts are required to make an evaluative judgement when applying the test and consider all of the circumstances. Lord Dyson agreed with the inevitability of imprecision, likening it to a ‘quest for a chimaera’ [54].

In the present case, the court found that Mr Khan had not “metaphorically taken off his uniform” when the tortious action occurred [47]. Lord Toulson considered it “a seemless episode” where Mr Khan also ordered the claimant to keep away from his employer’s premises. Taken together, Mr Khan’s actions were pursued in connection with the business in which he was employed and therefore Morrisons was vicariously liable.

Lord Dyson added that vicarious liability law is on the move but only in relation to the relationship between individual and defendant, not in regard to the circumstances when an employer may be held vicariously liable [55].

Cox

 This was a case about a prisoner working in the kitchen of HMP Swansea who negligently dropped a 25kg bag of rice on to the claimant, causing serious injuries. Ms Cox was working at the time as the prison’s catering manager. She claimed that the Ministry of Justice was vicariously liable for the prisoner’s actions.

Lord Reed gave the leading judgment. He noted that the Christian Brothers case identified five features which could be applied in situations where there is a contract of employment and where there is no such contract but the relationship bears all the hallmarks of a contractual employment relationship. In that case, Lord Phillips said [19]:

“…There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:

1. i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (“means”)
2. ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

iii) The employee’s activity is likely to be part of the business activity of the employer;

1. iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
2. v) The employee will, to a greater or lesser degree, have been under the control of the employer.” (“control”)

Lord Reed said that the five features are not all equally significant. He added that features relating to “means” or “control” are no longer independently significant or realistic in modern life [20,21]. Lord Phillips in Christian Brothers weaved together the remaining three features ((ii),(iii) and (iv) above). These are inter-related and can produce a situation whereby a relationship other than one of employment is in principle capable of giving rise to vicarious liability.

Lord Reed focused on the integration, of the employee’s activities with the employer’s business, citing with approval Lord Phillips’ summary of Ward LJ’s approach in E v English Province of Our Lady of Charity [2012] EWCA Civ 938 where Ward LJ asked:

“whether the workman was working on behalf of an enterprise or on his own behalf and, if the former, how central the workman’s activities were to the enterprise and whether these activities were integrated into the organisational structure of the enterprise” [26]

Lord Reed confirmed that the scope of vicarious liability extends beyond acts or omissions during the course of the worker’s employment. However, it does not extend to where a tortfeasor’s activities are entirely attributable to his independent business or a third party’s business. The court considered that this new wider scope should protect victims whilst acknowledging changes in the legal relationships between enterprises and their workforces [29].

Applying the above analysis, the court considered (i) that prisoners are integrated into the operation of prisons and (ii) that prisoners’ activities are an integral part of the prison service’s activities. Consequently, the MoJ was vicariously liable in the present case.

In short, many will see these judgments as extending further the circumstances in which vicarious liability will be held to exist. The concept of workers acting ‘on a frolic of their own’ has perhaps never been so tightly circumscribed.

The biggest human rights stories of 2012 – Part 2

30 December 2012 by Adam Wagner

2012 has been a busy year on the UK human rights front, never short of controversy, hyperbole and even some interesting points of legal principle along the way.

Here are some of the biggest stories from April to June 2012. The first part of this post, January to March, is here. Feel free to comment on my choices, and add your own if you think something is missing.

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Roundup: Bringing rights home weekly

15 February 2011 by Graeme Hall

Today we are reinvigorating our weekly human rights news and case law roundup. Look out for regular bulletins of all the law we haven’t quite managed to feature in full blog posts.

by Graeme Hall

Bringing Rights Back Home, with foreword by Lord Hoffmann – Policy Exchange: A report by political scientist Michael Pinto-Duschinsky, commissioned by the thinktank Policy Exchange, offers a strong academic criticism of the European Court of Human Rights’ current composition and powers, as well as the affects its judgments are having in Britain. Click here for our previous commentary on the report.

Ben Emmerson: The European Court of Human Rights enhances our democracy – The Independent: In a detailed article, Ben Emmerson QC examines the thinktank Exchange Policy’s recently published report ‘Bringing Rights Back Home’, which criticised the current practises of the European Court of Human Rights. In particular, the barrister pays attention to the comments of Lord Hoffman (a former law Lord) who authored the report’s foreward. See our previous post for a commentary on the report.

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The Round up: Assange’s arrest warrant, victims of human traffickers, and a Convention Right victory for salmon fisherman

18 February 2018 by Guest Contributor

Eleanor Leydon brings us the latest developments in rights law.

In The News:

A Senior District Judge has ruled that upholding the warrant for Julian Assange’s arrest is both in the public interest and proportionate, albeit that Assange has already restricted his own freedom for several years. In determining the proportionality of the proceedings the judge had regard to the seriousness of the failure to surrender, the level of culpability at this stage of the proceedings, and the harm caused, including impact on the community.

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Twitter reveals, more privacy, drug courts – The Human Rights Roundup

31 May 2011 by Graeme Hall

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. Happy post Bank Holiday reading!

by Graeme Hall

In the news:

Whilst the Neuberger Committee’s report is arguably the best place to kick-off any discussion on privacy, freedom of expression and Super-Injunctions, it is not, as Inforrm’s blog concludes, the “last word” on the matter. Indeed, this “overinflated topic” has been tackled with such gusto by the press and blogosphere that the High Court clearly gave a yellow card for “widespread disobedience“.

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Article 9

1 June 2010 by Adam Wagner

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

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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

Court of Session: Partners in Crime Have no ‘Family Life’

29 October 2015 by Thomas Raine

O’Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28^th October 2015 – read judgment

The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship.
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When is a policy not a policy: Supreme Court on Heathrow expansion

21 December 2020 by David Hart KC

R (o.t.a Friends of the Earth et al) v. Heathrow Airport Ltd [2020] UKSC 52 – read judgment

In February 2020, the Court of Appeal decided that the Government policy on airport expansion at Heathrow was unlawful on climate change grounds. The Supreme Court has now reversed this decision.

The policy decision under challenge was an Airports National Policy Statement (ANPS). An NPS sets the fundamental framework within which further planning decisions will be taken. So, in traditional terms, it is not a planning permission; that would come later, via, in this case, the mechanism of a Development Consent Order (DCO), which examines the precise scheme that is proposed. The ANPS (like any NPS) narrows the debate at the DCO stage. Objectors cannot say, for example, that the increase in capacity could better be achieved at Gatwick. Government policy has already decided it shouldn’t be.

The ANPS was made in 2018 by the Secretary of State for Transport (Chris Grayling), after many years of commissions and debates about airport expansion.

The other major policy player in this litigation was the Paris Agreement on Climate Change. This was concluded in December 2015, and was ratified by the UK on 17 November 2016. The Paris Agreement commits parties to restrict temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.

The UK’s domestic climate change legislation derives from the Climate Change Act 2008. The Planning Act 2008 (setting out the NPS system) required government in a given NPS (a) to explain how it takes account of its policy on climate change (s.5(8)) and (b) to exercise its NPS functions with regard to the desirability of mitigating and adapting to climate change (s.10).

The challenges debated in the Supreme Court revolved around (1) these two sections of the PA 2008, (2) a debate about the impact of the Strategic Environmental Assessment Directive (2011/92/EU), and (3) claims that the SoS has failed to take into account long-term (post-2050) and non-CO2 emissions.

One curious element of this appeal is that it was Hamlet without the Prince. After seeking to defend the case in the CA, the SoS did not appear in the SC, where Heathrow did all the running. Whether this non-appearance by the SoS was anything to do with the Honourable Member for Hillingdon’s undertaking (Boris Johnson MP) some years ago to lie in front of the bulldozers before the third runway was laid is of course unknowable. But as we shall see, this did not stop Heathrow’s arguments winning the day. So, possibly, central government’s policy objective achieved without political risk.

Strengthening Children’s Rights in Scotland

24 March 2020 by Daniel McKaveney

The United Nations Convention on the Rights of the Child (‘the UNCRC’) celebrated its 30^th anniversary on 20 November 2019. On the same day, the Scottish Government announced its plans to incorporate the UNCRC into Scots law. This means that the treaty will form part of domestic law in Scotland and its provisions will be enforceable by the courts. This is the result of many years of campaigning by children’s rights groups and civil society organisations.

What is the UNCRC?

The UNCRC is the most widely ratified international human rights treaty in history. In total, 196 countries have ratified it, with the USA being the only country in the world that is yet to do so.

It is the most comprehensive statement of children’s rights that exists, covering all aspects of a child’s life. It includes civil and political rights to economic, social and cultural rights, and even includes rights such as the right to play. Four general principles guide the implementation of the treaty: freedom from discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right to be heard (Article 12).

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