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: prisoner voting/page/47/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment
Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case.
You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.
Updated | It all started with the reporting of an injunction, supposedly obtained by former Royal Bank of Scotland chief executive, “preventing him being identified as a banker”. A mildly interesting story, made marginally more so by the fact that the injunction had been breached by an MP during a Parliamentary debate.
But there is more to the story. As bloggers Anna Raccoon, Charon QC and Obiter J have reported, on a Parliamentary debate on Thursday the same Liberal Democrat MP, John Hemming, revealed the details of a number of other (what he called) “hyper” injunctions. The common feature was that courts had ordered not only that the parties to litigation were to be prevented from revealing details of their cases to the public, but also to their MPs.
Hayward v. Zurich[2016] UKSC 48 27 July 2016 read judgment
and Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC, 20 July 2016 read judgment
Twin doses of dishonesty in the Supreme Court, last month. Both raised dilemmas for the SC trying to steer a principled way (in different circumstances) towards determining the cost of lying.
In the first, Mr Hayward claimed over £400,000 from his employers for a back injury at work. The Zurich smelt a rat and alleged exaggeration in its defence but felt ultimately they could not sufficiently prove it in court. So in 2003 they settled the claim by paying Mr Hayward just under £135,000. In 2005, his neighbours told insurers that they thought he had been dishonest. So the Zurich started proceedings to set the compromise aside and to get its money back. Mr Hayward sought to strike it out, saying “a deal was a deal”, without success. So he then faced a trial of Zurich’s claim, at the end of which Zurich was successful. But the saga was not over. He now faced a retrial of his original claim, in which he repeated the lies he had come out previously. The judge was thoroughly unconvinced, and gave him £14,700. It was that result which was eventually appealed to the Supreme Court.
The second claim concerned marine insurers of a ship who sought to repudiate a claim on the policy because the insured owners had told a lie in presenting the claim, even though the lie proved to be irrelevant to the insurer’s liability. Owners claimed over €3,200,000 for the loss of a vessel. They said that the crew had informed them that the bilge alarm had sounded at noon that day, but could not be investigated because of heavy weather. This was a lie told by the owners to strengthen the claim. But it turned out to be irrelevant to the result, because of the judge’s finding that the vessel’s loss had been caused by a peril of the seas.
Both lower courts found that this lie was a “fraudulent device”, which meant the insurers did not have to pay out under the policy.
So what did the Supreme Court do with these two claims about lying?
Welcome back to the UK Human Rights Roundup, your regular springtime blossom of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, a challenge to the legal aid reforms by the Howard League for Penal Reform is rejected, while campaigners seeking an inquiry into the action of British soldiers in Malaya in 1948 face similar disappointment. Meanwhile, some of the most senior judges in the UK give their views on the role of the judiciary today.
The European Convention 1950 guarantees the right to a fair trial. Everyone knows that. At article 6.1 the Convention says:
Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….
What everyone does not know is what is a ‘civil right’. And in the present context – namely divorce of civil partnership dissolution – do you have a right to query the assertion of your spouse or civil partner that your marriage or civil partnership has irretrievably broken down?
The Divorce, Dissolution and Separation Act 2020 simplifies the divorce and civil partnership dissolution process by changing the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove that, there was no longer any need to establish one or more facts: adultery (marriage only), unreasonable behaviour or living apart for varying periods. One, or both, parties can file a statement of irretrievable breakdown. The procedure for this is likely – no commencement date has been confirmed – to be in force from 6 April 2022. All so far so civilised.
Access to environmental justice is as topical asever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.
One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.
R (on the application of Hoang Anh Minh) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin) – read judgment
This case concerned the proper approach to establishing whether there are “reasonable grounds” for believing that a person has been a victim of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings (“the Trafficking Convention”). It also touched on the scope of the state’s positive obligations under Article 4 ECHR (which protects citizens of Council of Europe Countries from subjected to slavery, servitude, or forced or compulsory labour).
Background
The claimant arrived in the UK from Vietnam via Russia, where he claimed he had been forced to work in a factory for several years before being released. On arrival here he claimed asylum, which was refused.
In parallel with asylum proceedings, however, his case was referred to the Home Office’s competent authority to determine whether he was entitled to protection and assistance under the Trafficking Convention. The question in this context was different from that in the asylum claim – the competent authority was required to consider whether there were “reasonable grounds” to consider that the Claimant had been a victim of trafficking.
The competent authority gave an emphatic “no” to that question, by way of three decisions (an initial decision and two further decisions which reconsidered the first) which were in effect treated as a single decision for the purposes of the claim. The Claimant challenged those decisions by way of judicial review. Continue reading →
Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment
One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.
The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.
Laura Profumo considers the latest human rights headlines.
In the News
The High Court in Belfast today ruled that abortion legislation in Northern Ireland is in breach of the European Convention on Human Rights. The Northern Ireland Human Rights Commission (NIHCR) brought the case to extend abortion to cases of serious foetal malformation, rape and incest.
The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In this judicial review, it was held that the grounds for abortion should be extended, though it is still to be determined whether new legislation will be required to give effect to the ruling.
the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
the Policy was unlawful because it was unpublished; and
the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.
In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.
Gradwick v IC and the Cabinet Office (EA/2010/0030) – Read decision
The Panopticon Blog has highlighted an interesting recent case in the General Regulatory Tribunal which may prove to be useful in the many different situations where documents are disclosed in redacted form.
The General Regulatory Tribunal (‘the Tribunal’) regulates information rights, amongst other things. Simply, the Tribunal held that if parts of documents disclosed under the Freedom of Information Act 2000 are to be redacted (blacked out), it is not good enough to transcribe a new document with the offending parts removed. This is because, as the Tribunal said:
In 2015, the Court of Appeal found that the fast-track procedure rules for appeals against the refusal of some types of asylum claim (the FTR) was “structurally unfair, unjust and ultra vires” (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840; [2015] 1 WLR 5341, known as DA6). The Court of Appeal quashed the FTR because this structural unfairness “created a risk that the applicants would have inadequate time to obtain advice, marshall their evidence and properly present their cases”, which “created an unacceptable risk of unfairness in a significant number of cases”.
Six years later, the question in R (on the application of TN (Vietnam)) v Secretary of State for the Home Department[2021] UKSC 41 was straightforward: where a decision had been taken under the FTR, should it also be quashed, or must the person who was subject to the decision demonstrate that the decision itself was unfair, rather than merely issuing from an unfair system?
The High Court, Court of Appeal and Supreme Court all answered unequivocally that structural unfairness was not enough to quash an individual decision. Unfairness on the facts had to be found, or the decision would stand.
Background and Decisions Below
TN had, as the court acknowledged, a complicated procedural history, involving a number of applications for asylum, all of which (of those which had been determined at the time of trial) had been rejected. In hearings in those applications, TN had been represented by counsel. However, successive decisionmakers found TN’s claim not to be credible, and on 22 August 2014, the First-tier Tribunal (FTT) rejected her appeal. It was this rejection, decided as it was by a tribunal following the procedural rules in the FTR, which TN sought to challenge in this case.
One reason TN’s evidence was not believed was that it was inconsistent, giving different dates at different times for her mother’s death, and changing the basis of her application for asylum without explaining fully the reasons for the changes. This raised a question plainly discussed, but in the end not legally consequential, of the approach taken to evidence of trafficking, given that trafficking victims frequently change their stories, partly because they will often not know (in terms) that this is what they are (see paragraphs [22]-[24]).
In a detailed judgment, Ouseley J rejected TN’s application, upholding the Tribunal’s decision. His judgment involved a detailed review of the history of TN’s case, after which he concluded that the Tribunal’s decision was not tainted by the structural unfairness of the FTR.
In the Court of Appeal, Singh LJ gave the leading judgment (with whom Sharp and Peter Jackson LLJ agreed), holding that the “fundamental reason” that the application had to fail was that there was “a conceptual distinction between holding that the procedural rules were ultra vires and the question whether the procedure in an individual appeal decision was unfair”.
The legal lens through which this fundamental conceptual distinction found expression was the principle of jurisdiction. Singh LJ considered two bases on which the FTT could fail to have jurisdiction, rejecting both. First, he held that the ultra vires nature of the FTR did not divest the FTT of jurisdiction in the “pure and narrow sense” of having “the legal authority to decide a question”. The Tribunal’s jurisdiction was not created by the FTR but rather by statute; the FTR was “merely a rule which regulates procedure and form”.
The second basis on which the Tribunal might have lost jurisdiction was in the “post-Anisminic understanding of jurisdiction … that a body has acted in a way which is unlawful, including (for this purpose) in a way which is procedurally unfair”. This too was rejected: the Tribunal had not acted in such a way; even though the FTR had created a structural risk that it might, that risk had not eventuated.
Singh LJ went on to set out four factors which the court should take into account when the fairness of an individual decision made under the FTR was challenged on the basis of unfairness. These were, paraphrasing: (1) a high degree of fairness is required in the context of asylum applications; (2) the FTR created an unacceptable risk of unfairness in a significant number of cases; (3) there is no presumption that the procedure in any one case was fair or unfair and what is necessary is a causal link between the risk of unfairness created by the FTR and what happened in a particular case; and (4) the finality of litigation is important, and as such delay is relevant, as are questions as to what steps were taken, and how quickly, to adduce evidence later relied on.
Monday was England’s so-called ‘Freedom Day’, with the final coronavirus restrictions lifted. This means nightclubs can reopen; bars are no longer table service only; there are no more limits on attendee numbers at large events; and it is no longer mandatory to wear face coverings in public spaces, although the recommendation to do so remains. It also remains a legal obligation to self-isolate if contacted to do so by NHS Test and Trace, although it is not mandatory to download the NHS Covid-19 app, or to self-isolated if ‘pinged’ by it (i.e. alerted by the app to self-isolate). NHS Test and Trace contacts people who have been named by a positive-testing person as a close contact and are legally obliged to self-isolate or face fines from £1000 for failing to comply. By contrast, the Covid-19 app works by using Bluetooth to ‘ping’ people who may have come into close contact with a covid-positive person. A resulting ‘pingdimic’ has led to concerns about keyworker staff shortages leading to a hospital understaffing and potential supermarket food shortages. Frontline health workers can be exempt from self-isolation in exceptional circumstances, as can other keyworkers if their employers apply for and receive government authorisation specific to a named worker. From August 16th anyone who has had both vaccination doses will not need to self-isolate as a close contact.
Civil liberties organisation Liberty has expressed concerns that so-called “Freedom Day” is in fact “a moment of fear and division”. The organisation has criticised the Government for its “divisive, coercive strategies”, among which it includes “vaccine passports and mandatory vaccinations”. Vaccine passports in particular are condemned as “a step towards a two-tier society”. Despite these concerns, the organisation also expresses a worry that lifting restrictions has “serious implications” for the rights of frontline workers and the clinically vulnerable”.
In other news:
On Wednesday, the government published its Judicial Review and Courts Bill following an Independent Review of Administrative Law and a government consultation. The Bill seeks to “reform the rules around Judicial Review and facilitate a number of procedural improvements across the court system”. One of the reforms proposed is to remove Cart Judicial Reviews, which are High Court reviews of an Upper Tribunal’s refusal to grant permission to appeal. An “unprecedented” coalition of over 220 organisations, including Amnesty International UK, Greenpeace, Refugee Action and Stonewall, has criticised the Bill and proposed changes to the Human Rights Act.
On Friday the 2020 Summer Olympics began with an opening ceremony of dancers and acrobats performing to a near-empty stadium. Outside, protesters clashed with Tokyo police as Japanese citizens showed their anger at the games continuing to be held amidst the fourth declaration of an official state of emergency in Japan due to the coronavirus pandemic. In nine prefectures including Tokyo and Osaka, residents have been asked to go out for essential reasons only. In the week the Games began Japan saw numbers of Covid-19 cases not seen since January.
On Saturday the first ever “Reclaim Pride” march took place in London, with thousands taking to the streets to demand inclusive LGBTI+ rights. The event was organised amidst concerns that traditional Pride events (like London Pride, this year postponed to 11 September) are becoming less like protests and more like “over-commercialised parties”.
In the Courts:
Royal Mail Group Ltd v Efobi [2021] UKSC 33 – the Supreme Court unanimously dismissed an appeal from Mr Efobi, a postman for the Respondent, Royal Mail. The Appellant’s claim in the employment tribunal for direct or indirect racial discrimination was dismissed but the decision was overturned on appeal to the EAT. The Court of Appeal then reversed the decision in favour of Royal Mail and Mr Efobi was granted permission to appeal to the Supreme Court. Efobi argued (i) that a change in the wording of equality legislation from “where … the complainant proves facts” to “if there are facts from which the court could decide” removed the burden on the claimant to prove anything at the first stage of employment discrimination cases, and (ii) that the EAT should have drawn adverse inferences from the absence of a potential witnesses for the Respondent Royal Mail. The appeal was dismissed on the grounds that (i) the new wording simply clarifies that evidence from both parties must be considered, not only that of the claimant and (ii) tribunals are free to draw or decline to draw inferences using common sense. Furthermore, even if adverse inferences were drawn, the recruiter’s knowledge of Mr Efobi’s race was by itself insufficient evidence of racial discrimination.
Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131 –the Respondent had applied for British passports for three of her children (British citizens living in Country X) from Her Majesty’s Passport Office (HMPO), for which the Appellant is responsible. HMPO refused the applications for lack of evidence of the consent of a person with parental responsibility under the law of Country X. HMPO considered that person to be the children’s father alone. It was unsafe or impossible for the mother to obtain the father’s consent, as he had been arrested following “months of extremely serious physical and psychological abuse including torture of me.” A declaration signed by the father that he had no objection to his children travelling abroad with their mother was not accepted by HMPO as permission to grant British passports. HMPO’s passport refusal was quashed in a judicial review claim because: (i) there was no evidence to conclude that the father had to consent under the law of Country X; (ii) HMPO failed to consider the application of Article 22 of the 1996 Hague Convention; and (iii) Article 22 did apply and HMPO was entitled to refuse to apply the law of Country X. Article 22 allows the dis-application of an applicable law provision if it would be contrary to public policy, considering the best interests of the child. The Court of Appeal upheld the quashing order and refused the Appellant’s argument that HMPO was not obliged to consider, and should not have considered, Article 22. It also rejected the argument that HMPO should have asked the father alone for his consent, on the basis that the Country Profile for Country X suggested it allocates sole parental responsibility to the father. The Country Profile was insufficient evidence to conclude in this specific case that the mother had no authority to apply for British passports. Furthermore, upholding this law of Country X would be contrary to ECHR Articles 14 and 8, as it discriminates based on sex. Accordingly, the appeal was dismissed and permission to appeal was refused.
The High Court has ruled in McNally v Saunders that a retired solicitor’s ‘abrasive’ and ‘frequently puerile’ blog posts are entitled to the same level of protection as mainstream journalism. Chamberlain J struck out a harassment claim brought by a local government officer as having no reasonable prospect of success and has granted summary judgment for the defendant under CPR rule 24.2. The claim was brought under the Protection from Harassment Act 1997 by Dr Lisa McNally, MBC Sandwell’s director of public health and a mental health campaigner. McNally was the subject of five blog posts, criticising her decision to post a two-minute video about her own struggle with mental health and questioning her qualifications. She said the posts had caused her ‘crippling’ anxiety about attending meetings and made her worry about her ability to do her job. Given that Saunder’s posts’ were ’frequently puerile tone and style, a casual reader… might be surprised to discover that they are the work of a semi-retired former solicitor,’ the judge said. However ’none of these features disentitles them to the protections afforded by the law to journalistic expression.’ The public interest in McNally being able to continue in her role was outweighed by Saunders’ Article 10 right to free expression.
On Thursday, Harry Dunn’s family were granted permission to appeal against the High Court ruling handed down on 24 November, which held in no uncertain terms that Mrs Sacoolas did enjoy diplomatic immunity at the time she killed 19 year-old Harry Dunn while driving on the wrong side of the road in August of last year. The US state department has refused to waive her immunity under Article 32 of the Vienna Convention on Diplomatic Relations, stating that to allow the waiver, and thereby the extradition request that would inevitably follow would set an “extraordinarily troubling precedent”. The arrests of diplomats Michael Kovrig in China and Rob Macaire in Iran over the last year highlight the continued importance of the inviolability of diplomatic agents serving abroad. However, where there has been an unlawful killing by a family member of an agent, natural inclinations of justice are upset by the failure of a longstanding diplomatic ally to simply do the right thing.
The judgment accordingly decriminalises gay sex, in a landmark ruling for gay rights. Chief Justice Dipak Misra said in his decision that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary.”
The 160-year-old law was imposed on India by the British empire as part of a package of laws against public vice. Thursday’s judgment follows 24 years of legal challenges: most recently, the Delhi high court ruled against section 377 in 2009, but was overturned by the supreme court in 2013.
The breakthrough for lawyers came in August 2017, when the supreme court held that there was a fundamental right to privacy. In an unprecedented move, five judges commented in that judgment that the 2013 section 377 decision was wrong.
Trinidad & Tobago’s high court will also rule this month on whether to decriminalise sex between men, and similar rulings on decriminalising gay sex are awaited in Kenya and Botswana.
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.
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment
Welcome back to the UK Human Rights Roundup, your regular springtime blossom of human rights news and views. The full list of links can be found 
Recent comments