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A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.
Scottish assisted dying bill falls while Westminster proposals lag in the House of Lords
Tuesday evening saw the Assisted Dying for Terminally Ill Adults (Scotland) Bill defeated at the last stage of the Holyrood legislative process. After a final debate, Members of the Scottish Parliament voted against the bill by 69 votes to 57, with one abstention. The bill would have allowed some terminally ill patients to be assisted to end their lives. Patients would have been required to make two declarations of their wish for assisted dying and to undergo assessment by two doctors as to their eligibility and freedom from coercion or pressure.
Meanwhile, the House of Lords continues to debate amendments to the Terminally Ill Adults (End of Life) Bill for England and Wales. Owing to the 1,200+ amendments which have been tabled, the bill is now widely expected to run out of time – despite passing the Commons in June 2025. The bill’s proposer, Kim Leadbeater MP, is reported to have said that the House of Lords has ‘signed its own death warrant’ by stalling the legislation.
NHRI joint statement urges UK government not to dilute the ECHR
On Thursday, the UK’s three National Human Rights Institutions (NHRIs) issued an unusual joint statement urging the government to ‘commit to no reduction in rights protections’.
The NHRIs note that the UK government has expressed an intention to ‘re-balance’ and ‘clarify’ the position relating to migration by adopting political declarations on Articles 3 and 8 ECHR. They ask the government to explain how it will ensure that its proposals do not weaken ECHR protections. The statement continues:
‘The erosion of anyone’s rights puts us all at risk; it signals that these shared standards are not guaranteed and that any of our rights could be subject to debate.’
The UK’s NHRIs – the Equality and Human Rights Commission, the Scottish Human Rights Commission, and the Northern Ireland Human Rights Commission – are required to abide by the Paris Principles. These call on them to promote and protect all human rights by acting independently from government.
The UK Government has urged Supreme Court justices not to hear the Scottish government’s request for a ruling as to whether it has the power to hold ‘indyref2’ (a proposed second Scottish independence referendum). The request was referred to the UKSC by Lord Advocate Bain, who was not prepared to sign off on the independence referendum bill without a ruling which acknowledges the necessary power to do so. The UK Government has been expressive in its “clear view” that the bill would be beyond the competence of the Scottish Parliament, and that the matter is too “premature” for justices to rule on it. The case is currently in the hands of Lord Reed. If the Scottish Government wins the case, Nicola Sturgeon has indicated that the bill would be introduced promptly so as to allow the vote to take place before October 2023.
The Information Commissioner’s Office has reprimanded the Department of Health for the use of WhatsApp and private emails during the pandemic. The use of these cryptic platforms has meant that information regarding the handling of the pandemic has been lost. The issue was brought before the courts in April, where the claim was dismissed and the practice held to be lawful. This was because the use of such channels of communication did not in themselves breach the Freedom of Information or data protection rules, because sufficient controls were in place to allow the information to be retrieved upon request. The ICO investigation has discovered, however, that “such controls were lacking”. As a result, the Department of Health has been formally required to improve its communications operations so that “public authorities remain accountable to the people they serve”.
The crux of the issue in this appeal is both narrow and, to some degree, exceptionally broad. It is narrow in that the central issue before the Court of Appeal was “whether an application made under s.75(2) of the Mental Health Act 1983 by a mental health patient to the First-tier Tribunal while subject to a conditional discharge is extinguished by the recall to hospital of that patient by the Secretary of State for Justiceunder s42(3) of the Act” [1]; a pithy, glamorous summary.
However, the appeal has simultaneously broad implications; the Court considered whether certain mechanisms of judicial oversight were effective as judicial safeguards and in providing speedy consideration of a person’s deprivation of liberty as required by Article 5(4) ECHR. In what was ultimately an academic discussion which was somewhat removed from the generative facts, the Court of Appeal examined whether there was indeed a “lacuna” in the FtT’s oversight of offenders who have been conditionally discharged with a restriction order.
The Sunday Times, now committed to its campaign to change the law on assisted dying, has shared the story of Len and Karen Williamson, who spent £45,000 travelling to Switzerland with the assistance of private ambulances and a private flight, in order for Karen to elect the timing of her own death. Physician assisted suicide remains illegal in the UK, with the Suicide Act 1961 (which simultaneously legalised suicide) rendering liable those who aid, abet or procure the suicide of another to fourteen years’ imprisonment. Repeated challenges have been made against this law, with the most prominent being the leading case of Nicklinson & Anor R (on the application of) (Rev 1) [2014] UKSC 38. A nine-judge Supreme Court rejected the application of Tony Nicklinson, who was paralysed from the neck down and who described his life as a ‘living nightmare’, refusing to issue a declaration of incompatibility under s.4 of the Human Rights Act (see Rosalind English’s post on that decision.) This would have rendered the blanket ban on physician assisted suicide incompatible with the article 8 right to private and family life. Instead, the court expressly left the difficult decision up to Parliament. Since then, the Supreme Court has reaffirmed its position in the case of Noel Conway. Conway’s earlier Court of Appeal decision was considered in full on the UK Human Rights Blog.
Now, there appears to be some new hope for advocates of the right to die, a movement which (where the terminally ill are concerned) is supported by over 90% of the UK population. Baroness Meacher’s Assisted Dying Bill has now reached its second reading in the House of Lords, though it has a long way to go yet. The new Bill would permit attending doctors to provide medicines that would bring about the end of the lives of patients with a committed wish to die, where they are mentally competent and within six months of natural death. They would not be permitted to administer the medicines themselves (potentially leaving out individuals with locked-in syndrome who are not able even to swallow). Parliamentary intervention, strongly recommended by the Commission on Assisted Dying in 2012, would go some way towards curing the unprincipled approaches the courts have been forced to take in tragic cases such as Airedale NHS Trust v Bland [1993] UKHL 17 and A (Children), Re [2000] EWCA Civ 254, two cases which legalised the removal of life support by doctors, and the killing by separation of conjoined twins whose lives are parasitic upon and deadly for their stronger siblings, respectively.
Last week’s human rights news received an enormous amount of coverage, which means that we were unable to fit all of them within this humble post. However, we do recommend that you click here to access the full list of some of our favourite articles pertaining to last week’s hotly debated topics.
by Melinda Padron
The week started off with a Twitter account supposedly “outing” a number of individuals who had taken injunctions with anonymity clauses or “superinjunctions”. As we all know, this topic has been the subject of attacks by the press and politicians over the past few weeks. Judith Townend wrote an insightful post on the incident for the Inforrm’s Blog, which contained opinions from media lawyers and experts, and also links to many of the articles featured in newspapers and law blogs alike.
Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.
The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.
Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.
Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson. Continue reading →
Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton [2003] EWHC 1689 (Admin). Continue reading →
Canada Goose UK Retail Ltd v Persons unknown and People for the Ethical Treatment of Animals (PETA) [2020] EWCA Civ 303 on appeal from [2019] EWHC 2459 (QB)– Gareth Rhys
All references in square brackets are to paragraphs in the Court of Appeal judgment
The Court of Appeal has articulated the guiding principles that apply when seeking interim and final relief against ‘persons unknown’ in cases of public protests. The decision will be regarded as a win for civil liberties organisations and activist groups given that the Court has greatly restricted the circumstances in which injunctive relief may be sought against unknown protesters. This case has distilled the jurisprudence following the decisions in Cameron v Liverpool Insurance Co Ltd [2019] UKSC 6 and Ineos Upstream Ltd v Persons Unknown[2019] EWCA Civ 515.
Background
Canada Goose is an international company that manufactures and sells clothing containing animal fur and down. They brought a claim in damages and injunctive relief against ‘persons unknown’ who protested the use of animal products outside Canada Goose’s Regent Street shop.
Shoesmith, R (on the application of) v OFSTED & Ors [2011] EWCA Civ 642 (27 May 2011) – Read judgment
In April 2005, Sharon Shoesmith was appointed as Director of Children’s Services at Haringey London Borough Council. The appointment by a Council of such an officer is a statutory requirement – Children Act 2004 s.18. “Baby P” – who was the subject of a Child Protection Plan put in place by Haringey Social Services – died on 3rd August 2007 aged 17 months.
Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5. Their trial, at the Old Bailey, ended on 11th November 2008. To say the least, the trial was followed by a media hue and cry demanding that heads roll.
Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010
AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment
We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.
In AC (Algeria) v Secretary of State for the Home Department[2020] EWCA Civ 36, the Court of Appeal gave a trenchant warning that once it ceases to be lawful to detain an individual, the ‘grace period’ allowed within which to make arrangements for release can only be a short period. Moreover, the reasons for which any such grace period is required will be be closely scrutinised by the courts.
Background
Unsurprisingly, there continue to be a very significant number of judicial review and county court claims for unlawful detention brought by current and former immigration detainees. What is perhaps more interesting is that despite the relatively well-understood law governing the lawfulness of immigration detention the precise legal limits of the Home Secretary’s power to detain for immigration purposes continue to be tested and developed.
XVW and YZA v Gravesend Grammar School for Girls and Adventure Lifesigns PLC [2012] EWHC 575 (QB) – read judgment
In 2005 a group of schoolgirls were taken on a school trip to Belize. While working on a resort, three girls, aged between 15 and 17, were violently raped by the manager of the site.
The question before the High Court was this: were the school or travel company responsible for the actions of someone they had not employed, abroad, on a school expedition where decisions had to be made about unforeseen contingencies when the party had arrived at their destination?
Background facts
The school had arranged an expedition through the travel company ‘ALS’. The twelve pupils were accompanied by a teacher and two experienced employees of the travel company. The group initially arrived in Mexico but could not proceed with the itinerary because of a hurricane. The teacher and travel guides, in looking for alternative itineraries, were recommended a project called Maya Walks, run by Jimmy Juan and his son Aaron. It was agreed that the group would help construct buildings at the farm resort owned by Jimmy and Aaron and in exchange they received free accommodation. Continue reading →
R(on the application of Sayed) v Secretary of State for the Home Department; R(on the application of Patel) v Secretary of State for the Home Department [2011] EWCA Civ 1059 – read judgment
The Court of Appeal has confirmed that Article 8 of the Convention need not necessarily be considered when deciding whether to grant an applicant indefinite leave to remain. The Immigration Rules the are the sole test of eligibility, and Article 8 cannot be used to modify them. They should therefore be read according to their natural and ordinary meaning.
In these conjoined appeals the appellants challenged decisions upholding the secretary of state’s refusal to grant them indefinite leave to remain in the United Kingdom. The first appellant, S, had sought indefinite leave to remain in the UK on the basis of long residence. The secretary of state refused his application on the basis that he had failed to show that he had completed 10 years continuous lawful residence in the UK because there had been two gaps in his residency. He was, however, granted leave to remain in the UK for a period of three years to complete a course of study. The second appellant, P, had sought indefinite leave to remain in the UK as the parent of a person, his son, present and settled in the UK under the Immigration Rules para.319. P’s application was refused on the basis that he did not meet the dependency requirements of para.317 of the Rules. In both appeals an issue arose as to whether the Rules should be construed so as to conform with Article 8. Continue reading →
Black and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.
The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull[2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court.
This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.
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A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
Last week’s human rights news received an enormous amount of coverage, which means that we were unable to fit all of them within this humble post. However, we do recommend that you 
Shoesmith, R (on the application of) v OFSTED & Ors [2011] EWCA Civ 642 (27 May 2011) – 
Black and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment 
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