Search Results for: prisoners/page/17/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.

Law and the Culture War

21 September 2021 by Henry Tufnell

The judgment in Forstater v CDG Europe UKEAT/0105/20/JOJ has forced the courts yet again to grapple with the transgender debate. We have already seen the judiciary face up to the challenging issues of whether children with gender dysphoria can consent to receiving puberty blockers (see recent decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363). In the present case, the issue was whether the Claimant’s belief that biological sex is real, important, immutable, and not to be conflated with gender identity was a “philosophical belief” within the meaning of section 10 of Equality Act 2010 (“EqA”).

Background

The claim arose from the Claimant’s statements on Twitter, which manifested her beliefs on the immutability of sex. Her colleagues found these offensive and complained. Her consultancy contract was not renewed, and she brought proceedings before the Central London Tribunal on the basis that she had been discriminated against because of her belief that sex, rather than gender, is fundamentally important and that there are no circumstances in which a trans woman is a woman or a trans man is a man. At a preliminary hearing, the Judge held that the Claimant’s belief was not a “philosophical belief” within the meaning of section 10 EqA.

Analysis: Woolas loses election court challenge, court clarifies constitutional role

3 December 2010 by Adam Wagner

R (on the application of Philip James Woolas) and The Parliamentary Election Court [2010] EWHC 3169 (Admin) – Read judgment / press summary

Phil Woolas has lost his appeal by way of judicial review of the decision to strip him of his election victory in Oldham East and Saddleworth in the 2010 General Election. He has said he will not appeal the decision.

Mr Woolas had to first convince the Administrative Court, which handles judicial reviews of the decisions of public bodies, that it had jurisdiction to hear the claim. He won on this point. However, once it had accepted it could hear the case, the Administrative court went on to uphold most of the decision of the Election Court.

Continue reading →

Bishop can be vicariously liable for priest’s sex abuse, rules High Court

9 November 2011 by Rachit Buch

JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) – Read judgment

Elizabeth Anne-Gumbel QC and Justin Levinson of One Crown Office Row acted for the Claimant in this case. They did not write this post.

A Roman Catholic diocese can be held liable for the negligent acts of a priest it has appointed, the High Court has ruled. The ruling is a preliminary issue in the Claimant’s proceedings against alleged sexual abuse and rape at a children’s home. The trial of these allegations are to follow.

The Claimant, a 47-year-old woman, is suing the Portsmouth Roman Catholic diocese for the injury she alleges she suffered from abuse and rape while living at a children’s home run by the diocese in the early 1970s. The priest involved, Father Baldwin, is now dead. The High Court was asked to determine, before the trial of the allegation, whether the diocese – that is, the district under supervision of the Bishop – could be held liable for Father Baldwin’s acts; whether the principle of vicarious liability applies to a diocesan bishop for the acts of a priest he has appointed.

Continue reading →

Male circumcision can be part of “reasonable parenting”, but no form of FGM is acceptable – Family Court

18 January 2015 by Rosalind English

B and G (Children) (No.2) [2015] EWFC 3 – read judgment

Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.

This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.

These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings.
Continue reading →

Conviction of doctor under assisted suicide prohibition not in breach of Convention

13 April 2022 by Rosalind English

Lings v Denmark (Application no. 15136/20)

The European Court of Human Rights has ruled that states have a broad margin of discretion in applying their criminal law to cases of assisted suicide. The applicant’s conviction may have constituted an interference with his rights, but that interference was prescribed by the Danish criminal law, which pursued the legitimate aims of the protection of health and morals and the rights of others. Denmark had not acted disproportionately by convicting him.

Law Pod UK recently ran an episode with former Court of Appeal judge  Sir Stephen Sedley and Trevor Moore, the director of the campaign group  My Death, My Decision, in which we dealt with this difficult subject in detail. Sir Stephen is a victim of Parkinson’s disease and his contribution to the debate is profoundly important. I have therefore quoted extensively from the article Sir Stephen wrote for the London Review of Books in October 2021, “A Decent Death”.

Those campaigning for a change in the law in this field object to the use of the word “euthanasia” and I have respected this position in the following case report. It should be noted at the outset that the applicant physician was a member of an association called “Physicians in Favour of Euthanasia”. This is the English translation. The Danish suggests something closer to “assisted dying”: ” Aktiv Dødshjælp”.

Student fees, access to justice and Leveson Part II – The Human Rights Roundup

26 February 2012 by Sam Murrant

Welcome back to the human rights roundup, your weekly buffet 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.

In the news

Legal aid reforms

The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.

UKHRB news

In exciting news for this blog, UKHRB editor Adam Wagner has been appointed to the Attorney-General’s C panel of Counsel. See here for more detail on what this involves.

Continue reading →

No, legislating to allow euthanasia would not breach the European Convention on Human Rights

7 November 2024 by anuragdeb

Anurag Deb and Lewis Graham

Introduction

There are many well-tuned arguments both for and against the liberalisation of the UK’s strict euthanasia laws, some more helpful than others. This piece is not concerned with weighing up the policy arguments for or against such a move, nor does it consider which “side” of the argument is ultimately more convincing. Indeed, the authors do not necessarily agree with one another on the discrete question of whether Kim Leadbeater MP’s Bill should be supported.

But one curious argument has recently emerged which is of serious concern to both authors: the argument that liberalising euthanasia laws, in line with the proposed changes in Leadbeater’s Bill, should be resisted, as doing so would be to contravene the rights under the European Convention on Human Rights (ECHR). In this post, we seek to debunk this argument.

There are, we think, two main variants of ECHR-based arguments to this effect: one invoking Article 14 (freedom from discrimination) and the second relying on Article 2 (right to life). Neither is convincing.

Rights in a time of quarantine – an extended look by Niall Coghlan

17 March 2020 by Guest Contributor

Quarantines and lockdowns are sweeping Europe: Italy, France, Spain. Through them, states seek to contain Covid-19 and so save lives. It is difficult to imagine higher stakes from a human rights perspective: mass interferences with whole populations’ liberties on one side; the very weighty public interest in protecting lives on the other; and all this under the shadow of uncertainty and disorder. What, if anything, do human rights have to say?

To begin sketching an answer to this complex question, this post analyses the situation in the European state furthest down this path: Italy. After outlining the Italian measures (I), it argues that Italy’s mass restrictions on internal movement are unlikely to violate the right to free movement but pose problems in respect of the right to liberty (II). I conclude by summarising the tangle of other rights issues those measures raise and making a tentative reflection on the currently limited role of human rights law (III).

Before beginning, I should note that analysing measures’ human rights compliance in abstracto is difficult and slightly artificial: a great deal turns on how measures are implemented in practice and particular individuals’ circumstances. Moreover, my analysis is limited to the European Convention on Human Rights (‘ECHR’), and I do not profess expertise in Italian law (which is proving complex to interpret). The aim of this post is therefore to start, not end, debate about human rights’ role as these measures begin to spread across Europe.

The dissenting voices in Rahmatullah: no time for political sensitivities

3 November 2012 by Lois Williams

Secretary of State for Foreign and Commonwealth Affairs and another v Yunis Rahmatullah [2012] UKSC 48 – read judgment.

For a summary of the facts and reasoning in this case please see Rosalind English’s previous post.

Only a few weeks after giving the Birkenhead lecture entitled “Dissenting judgments – self indulgence or self sacrifice?” (See David Hart QC’s previous post), Lord Kerr delivered the leading judgment of the Supreme Court in the case of Rahmatullah.   Given that the issue of a man’s liberty was at stake, it could be no real surprise for Lord Kerr or anyone else that there were two dissenting judgments in the cross-appeal provided by Lord Carnwath and Lady Hale. They made clear that in their view the UK should have done more to secure the release of detainee Yunis Rahmatullah and in doing so raised questions as to the proper limits of judicial intervention into the “forbidden area” of foreign policy.

But first what did everyone agree with? The Supreme Court was unanimous in dismissing the Secretary of State’s appeal against the Court of Appeal’s decision to issue a writ of habeas corpus to the UK Government. The primary purpose of the hallowed habeas corpus writ is the physical production of the person concerned, in order for the detainer to show that detention is lawful.   Here the problem was that the person concerned, Mr Rahmatullah, although first captured by UK forces in Iraq, is currently detained by US forces in the notorious Bagram Air Base, Afghanistan.

Continue reading →

Standing and judicial review: why we all have a “direct interest” in government according to law – Dr Mark Elliott

30 July 2013 by Guest Contributor

According to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:

We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.

This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.

Continue reading →

Rise of the algorithms

4 November 2019 by Alice Irving

The use of algorithms in public sector decision making has broken through as a hot topic in recent weeks. The Guardian recently ran the “Automating Poverty” series on the use of algorithms in the welfare state. And on 29 October 2019 it was reported that the first known legal challenge to the use of algorithms in the UK, this time by the Home Office, had been launched. It was timely, then, that the Public Law Project’s annual conference on judicial review trends and forecasts was themed “Public law and technology”.

Basic tech for lawyers

The conference helpfully opened with a lawyer-friendly run down of algorithms and automation. Dr. Reuben Binns (ICO Postdoctoral Research Fellow in AI) drew a number of useful distinctions.

The first was between rule-based and statistical machine learning systems. In rule-based systems, the system is programmed to apply a decision-making tree. The questions asked and the path to a particular outcome, depending on the answers given, can be depicted by way of flow-chart (even if that flow-chart might be very large, involving numerous branches). In contrast, statistical machine learning involves a computer system training itself to spot patterns and correlations in data sets, and to make predictions based on those patterns and correlations. The computer system is first trained on data sets provided by the system designer. Once trained, it can be used to infer information and make predictions based on new data. These systems might be used, for example, to assess the risk of a person re-offending, where the system has been trained on existing data as to re-offending rates. It has long been known that machine-learning systems can be biased, not least because the data on which they are trained is often biased.

The felling of a tree might breach occupier’s right to respect for a home

25 April 2013 by Rosalind English

Lane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD 

In Italo Calvino’s charming short story “The Baron in the Trees” the twelve year old son of an aristocratic family escapes the stultifications of home decorum by climbing up a tree, never to come down again. He literally makes his home in the treetops of his vast family estate.

So perhaps we shouldn’t quarrel with the inclusion of a tree as part of the concept of home life for the purposes of Article 8. The further twist is that the felling of this particular tree took place on a property where the appellant lived without a tenancy. Nevertheless, this event still amounted to a potential interference with his right to a home under Article 8.
Continue reading →

Alternative treatment for seriously ill child not in his best interests

7 June 2017 by Rosalind English

Yates and Anor v Great Ormond Street for Children [2017] EWCA Civ 410, 23 May 2017 – read judgment

On Thursday 8 June the Supreme Court will be asked to grant permission to appeal in this case of a seriously ill 9 month old child whose parents wish to take him to the USA for experimental treatment that may slow his deterioration.

The human issues are all over the press – this post will concentrate on the legal arguments in the Courts below, including the very recently published judgment of the Court of Appeal.

Perhaps the most interesting question in this case is not the statutory or human rights background, but the issue of jurisdiction. The court has as part of its inherent jurisdiction to rule on the child’s fate on the basis of his best interests. The appellants were arguing that this was not the test; that the question at the core of the consideration was that of “serious harm”. The parents argue that

the hospital’s application to prevent the delivery of a therapy which it did not, itself, intend to provide, was outside its powers as a public authority, and the court had no jurisdiction to uphold the hospital’s position.

Continue reading →

Cornish waste incinerator case reversed- expectation not legitimate after all

30 March 2012 by David Hart KC

R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government, Court of Appeal, 29 March 2012, read judgment

The CA has just held that Collins J was wrong to hold (per my previous post) that the local NGO had a legitimate expectation that the Secretary of State would decide an air pollution issue, rather than  leave it to the Environment Agency. In a nutshell, the Inspector (and hence the Secretary of State) was entitled to change his mind on this issue. So the expectation crumbled, and so did this judicial review to quash a decision to allow a waste incinerator to proceed.

Continue reading →

Whistleblowing judges: protected by human rights?

18 October 2019 by Guest Contributor

Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment

The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.

In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).