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UK Human Rights Blog - 1 Crown Office Row
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Parrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment
The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures.
A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.
The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.
Bank Mellat v HM Treasury [2015] EWHC 1258 (Comm), Flaux J, 6 May 2015, read judgment
Two recent judgments underscoring the potential high cost of the UK getting it wrong in its dealing with businesses and hence being liable to pay damages under the Human Rights Act for breach of its A1P1 obligations. Regular readers will know that A1P1 is the ECHR right to peaceful enjoyment of property.
The first case was the photovoltaics case of Breyer, all about reducing renewables subsidies unfairly: see my post of last weekhere. The second, this case, involves a much more direct form of impact, namely the Treasury’s direction under the Counter-Terrorism Act 2008 that no-one else should have any commercial dealings with Bank Mellat, because, the Treasury said, the Bank had connections with Iran’s nuclear and ballistic missile programme.
Bank Mellat’s challenge got to the Supreme Court: see judgment and my post. The Court (a damn’d close run thing – 5:4) concluded that the direction was arbitrary and irrational and procedurally unfair. The nub of the complaint is that there were other Iranian banks against whom this very draconian measure was not taken, and that there was nothing specific about the Bank which made it more implicated than the rest of the banking system.
The Supreme Court remitted the case for trial as to HRA damages.
The current judgment of Flaux J is the first stage in that trial process. As we will see, Bank Mellat are distinct winners at this stage.
The Human Genetics Commission have today published new guidance for direct-to-consumer genetic tests, including a recommendation that children should not be genetically tested by their parents unless the test is clinically indicated. The guidelines highlight that the ethical issues surrounding home-testing are still fuzzy and provide an interesting challenge from a perspective of human rights.
Home DNA testing kits are a fast-growing trend. They have already been on sale direct to consumers for three years by companies such as 23andMe and deCODEme, which advertise home-testing as a means of “taking charge of your health” and “filling in your family tree”. DNA paternity testing has been available for years, but it is the health aspects of home testing which have huge and potentially troubling implications in respect of basic rights.
Ten human rights campaign groups and the lawyers for a number of detainees alleging UK involvement in their mistreatment have confirmed that they will be boycotting the impending Detainee Inquiry.
We recently posted on the publication of the Terms of Reference and the Protocol for the Detainee Inquiry and set out some of the reaction to it. At the time, a number of lawyers representing those who claimed to have suffered mistreatment threatened to boycott the inquiry, claiming it would be a whitewash. As the BBC has reported, they have now been joined by a number of Human Rights organizations, and it seems that the clear intention is for the boycott to go ahead.
Eweida and Others v. the United Kingdom – read judgment
The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.
All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).
In the early hours of 24 March 1922, a group of men, of whom most were in police uniform, broke into the North Belfast home of prominent Catholic businessman Owen McMahon and shot him dead, along with four of his sons and a male employee. Between 1920 and 1922, hundreds of people were killed, and thousands forced out of their homes, particularly in Belfast and the surrounding townlands. These grizzly events marked the birth of Northern Ireland.
On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.
The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.
In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.
Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.
The Background
The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.
These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:
The prohibition of abortion in cases of
Serious malformation of the foetus;
Pregnancy as a result of rape; and/or
Pregnancy as a result of incest
was argued to be incompatible with
Article 3 (the prohibition of torture and of inhuman or degrading treatment);
Article 8 (the right of everyone to respect for their private and family life); and/or
Article 14 (the prohibition of discrimination)
In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:
Fatal foetal abnormality
Rape up to the date when the foetus is capable of being born alive
Incest up to the date when the foetus is capable of being born alive
The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.
The NIHRC appealed to the Supreme Court in London.
Welcome back to the UK Human Rights Roundup, your regular smorgasbord 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.
There was a lot of reaction this week to the proposed Royal Charter on press regulation and the auxiliary legislation upon which it relies. Commentators are divided on whether the move will work or not, with most controversy surrounding the concept of a ‘relevant publisher’ and how this will affect small, online media. Meanwhile, the Supreme Court has declared that it does have the power to read closed judgments of courts below, and therefore could, too, issue closed judgments. Debate continues about the shape of human rights in the UK, especially after the next election; whilst the ECHR slowly evolves with a new protocol ready for ratification.
Abu Hamza, Babar Ahmad, Syed Talha Ahsan, Adel Abdul Bary and Khaled al-Fawwaz have lost their High Court Judicial Review challenges to their extradition to the United States to face terrorism related charges. The court refused permission to apply for Judicial Review.
Two weeks ago the European Court of Human Rights refused the men’s requests to refer their extradition appeal to its Grand Chamber for another hearing. This meant that their case, which was decided in the Government’s favour in April (see our post) became final and there were in theory no remaining barriers to their extradition to the United States to face terrorism charges [Update, 7.10.12 – they are already in the United States, so no more legal shenanigans on these shores].
The men each brought different judicial review claims as a final challenge to their extradition, and those claims have – quite rightly – been dealt with rapidly by the High Court, which rejected the claims outright. As the court’s summary says, these proceedings are “the latest, and if we refuse permission, the last, in a lengthy process of appeals and applications that has continued for some eight years in the case of three and 14 years in the case of two.”
When dealt with at an oral hearing, refusals by the court of permission to apply for Judicial Review are not appealable. So pending any legal shenanigans (I can’t think of anything more they can do but as Julian Assange has taught us all, anything is possible), the (this time really) final barrier to extradition looks to have been removed.
The Supreme Court of the United States has decided that same-sex couples have a constitutionally protected right to marry.
In the history of American jurisprudence, there are a handful of cases which are so significant that they will be known to all US law students, much of the domestic population at large, and even large segments of the international community. Brown v Board of Education, which ended racial segregation in schools, is one example. Roe v Wade, which upheld the right of women to access abortion serves, is another. To that list may now be added the case of Obergefell v Hodges.
The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.
This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.
Background
Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely. Continue reading →
How the lockdown was reportedby the newspapersin March. Image: The Guardian
Emmet Coldrick is a barrister at Quadrant Chambers, London. The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.
This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England. They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).
These extraordinary new laws were made without prior debate in Parliament. The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.
On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one. The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”). That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.
Mr Dolan’s challenge is pending in the Court of Appeal. It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health[2020] EWHC 1786 (Admin) (6th July 2020). But the Act presents difficulties in interpretation that were not grappled with in the judgment. I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.
Deb and Graham characterise my argument as follows: “the right to life under Article 2 is absolute and allows no exception; there is a negative obligation upon the UK not to take life; any euthanasia laws would necessarily involve the taking of life; therefore euthanasia laws would breach Article 2.” They then point out that this argument has been rejected in Mortier v Belgium.
The problem is that this completely mischaracterises my argument and as result Deb and Graham dedicate several paragraphs to attacking a strawman. My argument was much narrower than they claim. As I explained in my blog post the “negative obligation prohibits the State from conducting euthanasia and assisted suicide itself, even as part of a well-regulated scheme with appropriate safeguards. This means that, under the Convention, States may allow/tolerate private parties from conducting euthanasia/assisted suicide with appropriate safeguards but the State itself cannot conduct them.” (emphasis added)
R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 – read judgment
On appeal from [2013] EWCA Civ 961
The Supreme Court has declined to uphold a right to die a dignified death. However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.
But the majority concluded that this was a matter for Parliament, not for the Courts.
The following summary is from the Supreme Court’s Press Summary
Bacground
These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading →
District Judge Coleman, a judge sitting in the Westminster Magistrates Court, has issued a summons for Boris Johnson to appear in the Crown Court. He will face three charges alleging misconduct in a public office in a private prosecution brought by Marcus Ball. The offences alleged are indictable only which means that they can only be heard in the Crown Court.
Marcus Ball, a 29-year-old businessman who has brought the proceedings with the help of crowdfunding, alleges that the frontrunner for the Tory leadership lied about the amount of money which the UK sends to the EU both during the referendum campaign and during the general election campaign in 2017.
The controversial claim that £350m a week was sent by the UK to the EU and could better be spent on public services in the UK instead was a particularly eye catching aspect of the Leave campaign and attracted considerable criticism at the time and since. Some of that criticism particularly from the Institute of Fiscal Studies which branded the claim “absurd” and UK Statistics Authority whose chair described the claim as a misuse of statistics forms an important part of the case.
At issue in this procedural hearing was whether the court should issue a summons for Boris Johnson to attend court. He opposed the application and lost. He will be required to appear therefore be required to attend court for a preliminary hearing and the case will then be sent to the Crown Court.
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Parrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment
Ten human rights campaign groups and the lawyers for a number of detainees alleging UK involvement in their mistreatment have 
In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found 
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