Search Results for: prisoners/page/36/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.

When the UN breach human rights… who wins?

5 October 2012 by Alasdair Henderson

NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment

How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.

Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).

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Dolan’s latest lockdown defeat

3 December 2020 by Rosalind English

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.

A1P1 claims by photovoltaics get to the Court of Appeal

4 May 2015 by David Hart KC

Department of Energy and Climate Change v. Breyer Group plc and others  [2015] EWCA Civ 408, 28 April 2015 read judgment

In 2011, DECC decided to change the rules about subsidies for photovoltaic schemes, and caused substantial losses to those who had contracted or were about to contract on the basis of the more generous old subsidies. 

This is prime territory for a damages claim under A1P1 ECHR. The Court of Appeal has recently dismissed an appeal by DECC against a decision of Coulson J (see my post here) supportive of such claims.  The decision was on preliminary issues involving assumed facts, but important legal arguments advanced by DECC were rejected by the CA. 

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Human rights roundup: Control orders, Google rapped and Henry VIII clauses

5 November 2010 by Adam Wagner

Updated | For your weekend reading pleasure, some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.

Abu Hamza wins passport appeal – BBC: Radical Muslim cleric Abu Hamza has won his appeal in the Special Immigration Appeals Commission against government attempts to strip him of his British passport. Apparently he won as taking his passport away would have rendered him “stateless”. We will comment on the case once the judgment is released (update – judgment is here and our post is here). In the meantime, you can read the background to his extradition appeal here.

A breathtaking Bill of which even Henry VIII would have been proud – Law and Lawyers: The Public Bodies Bill is making its way through Parliament, and the Law and Lawyers blog has sounded the alarm that the bill, if passed into law, will amount to a “permanent extension to Ministerial powers exercisable with quite minimal Parliamentary oversight.” It is “replete” with so-called Henry VIII clauses, which could provide unchecked power to the Executive. I discussed the issue of Henry VIII clauses in July, in light of the Lord Chief Justice’s comments on the issue.

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The triple Olympic detainee

13 August 2012 by Adam Wagner

Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors [2012] EWHC 2349 (Admin) – read judgment 

Angus McCullough QC represented Abu Qatada as his Special Advocate in the SIAC proceedings.

Along with many others, today I find myself emerging from an Olympic haze. And alongside that morning-after blur comes a nagging feeling that it is time to get back to blogging. Why not start with a man who has watched the last three Olympic Games during what the High Court describes as an “enormously lengthy” period of  detention without charge, and whose last bail application was refused as it would be too difficult to keep track of him during the 2012 Olympics?

The last two or so weeks have been a wonderful time to be in London. Aside from the slightly naff closing ceremony, everything about the sporting carnival has been positive. It has also been a great time to be working in Temple, which has been converted into ‘Belgium House‘ for a fortnight.

Before returning to unlawful detention and Abu Qatada, a personal reflection. The first time I ever visited the Inner Temple was for a scholarship interview which took place on 9 July 2005. I will always remember the date because I had come to London for the interview on 6th July, the day on which the Games were awarded to London. The following day, I was on a bus on the way into town reading a newspaper headline about the Olympics, when I read on the BBC website that there had been a bomb on a tube. I jumped off the bus and flagged a taxi going the opposite direction, and the taxi driver told me he had just seen a bus blow up in Tavistock Square.

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US ten years behind Britain on gay soldiers

20 December 2010 by Adam Wagner

Updated | Following the US Senate’s vote to repeal the ban on gay soldiers serving in the US military, it is interesting to compare the situation in the British Army, where gay soldiers have been allowed to serve since 2000.

The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.

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A Tale of Two Judgments: Scottish Court of Session rules prorogation of Parliament unlawful, but High Court of England and Wales begs to differ

11 September 2019 by Jo Moore

The Scottish Court of Session (Inner House) today ruled that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful. The High Court of England and Wales today handed down its judgment on the same issue – and came to the opposite conclusion.

How can these two conflicting judgments be resolved? They can’t, so it’s off to the Supreme Court on 17 September.

Before we delve into the decisions of both courts, a reminder of some of the key issues:

Prorogation: The act of discontinuing a parliamentary session, until the State Opening of Parliament which commences the next session. It is unlike recess, which is a break in the parliamentary session when parliamentary business is merely suspended, and MPs can be more easily recalled if required. It is also unlike dissolution, which occurs before an election and mean that every MP must re-stand for election.

When Parliament is prorogued, all business comes to an end. Bills which remain in progress (i.e which have not become law) lapse and must be restarted when Parliament is re-opened.

The Prime Minister decided on 28 August 2019 to advise the Queen to prorogue Parliament. An Order in Council was made that day by the Queen, effecting the Prorogation. Parliament was prorogued on 9 September 2019, and – as it stands – will not sit again until 14 October 2019.

Justiciability: The concept of a matter being susceptible to, and capable of, review by the courts. ‘Non-justiciability’ encompasses a number of principles. In Shergill v Khaira, [2014] UKSC 33 the Supreme Court has distinguished two categories of non-justiciability, (1) issues with no basis in domestic law and (2) issues in respect of which judicial restraint will be exercised, due to the separation of powers and judicial competence. The latter is in issue in these cases. Political questions, and certain matters involving the exercise of the Royal Prerogative, are often argued (and held) to be beyond the reach of judicial review. Recent decisions show that the concept is not absolute, even with regard to prerogative powers.

Climate change human rights litigation: is it so radical? Nicola Peart

9 May 2012 by Guest Contributor

 In the UK there are at present no rights expressly cast in terms applicable to climate change, nor have our traditional human rights been extensively interpreted as covering climate change consequences. As David Hart QC identifies in his blog, Is climate change a human rights issue?, human rights principles, to be useful for climate change litigators, have to have some democratic backing somewhere. So is there any hope, in the near future at least, of formally or even informally establishing a link between climate change and human rights in the UK? Is human rights based climate change litigation as ‘radical’ as David Hart suggests?

Consider, for example, the situation where the avoidance of further climate change damage was possible through adequate mitigation and/or adaptation, but where adaptation measures were not implemented due to financial or technical constraints. Leaving aside the issue of whether the State would be liable for a moment, could existing human rights be engaged in this situation?

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Contraception, capacity and coercion: when does a woman lack capacity to decide whether to use contraceptive treatment?

25 August 2010 by Caroline Cross

A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam) – Read judgment

In the first case of its kind, the court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it.

Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

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Tory Plans to Repeal the Human Rights Act: the Legal Community Responds – the Human Rights Roundup

19 October 2014 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular kicking collection 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, the legal community reacts to Tory plans to repeal the Human Rights Act. Given the significance of the proposals for human rights protection in the UK, this week’s roundup focuses on how those plans have been received. 
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How often must we investigate torture?

20 September 2016 by Dominic Ruck Keene

Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.

This is the third in a series of posts on the Court of Appeal’s recent judgment. The full background to the case can be found in my earlier post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here, and Alistair Henderson’s analysis of whether the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings here.

This post concerns the extent of any obligations imposed on the UK to investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose from two individuals whom had been captured by British forces in Iraq claimed they were transferred to American custody and subsequently ill-treated. The Article 5 issue arose from the detention by British forces in Iraq of  several individuals who claimed to have had their Article 5 rights violated whilst in British custody.

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Breaxit: Cereals, food standards and child obesity

6 July 2022 by Rosalind English

Kellogg Marketing and Sales Company (UK) Ltd & Anor, R(On the application Of) v Secretary of State for Health and Social Care EWHC 1710, 4 July 2022

UKHRB followers of a certain age may remember this advertisement for breakfast cereal, which went “viral” in the days before the internet: [deleted due to copyright rules]

Those were innocent times, when we believed that the combination of wheat, fat and sugar in a breakfast cereal was a good start to a child’s day. Now we know that foods high in sugar are major contributors to the child obesity epidemic in this country. Hence the government’s regulations on nutritional foodstuffs, introduced last year.  

Background law and facts

The Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368 – “the 2021 Regulations”) are part of the Government’s strategy to tackle childhood obesity. They introduce restrictions on the promotion, in supermarkets or other large outlets and online, of food which is classified as high in fat, sugar or salt.

Under these Regulations breakfast cereals are included in the categories of food which may be “specified food” and therefore subject to the relevant restrictions. Whether a given product within one of these categories is in fact classified as “less healthy” depends on the score which it is given under the Food Standards Agency’s Nutrient Profiling Model (“NPM”). The NPM requires that the nutrient content of a given product is analysed per 100g of the food or drink itself, rather than taking account of what the food or drink may be consumed with.

Kellogg’s – one of the main players in the breakfast market – relies on agreements with retailers to place its products in parts of stores (e.g. near the checkout, in a queuing area, at the end of an aisle) which maximise sales and to promote its products on the retailers’ websites.

Arguments before the Court

Kellogg’s pleaded claims were based on a number of grounds, the main one being that the Defendant failed to have regard to a relevant consideration, namely the fact that breakfast cereals are typically consumed with milk. This, they maintained was part of the nutrient profile of breakfast cereals.

Kellogg’s fundamental complaint about the 2021 Regulations was that, under the NPM, the fact that a portion of, for example, Kellogg’s “Frosties” would typically be consumed with milk, was not taken into account in assessing whether this product was food which is classified as high in fat, sugar or salt (“HFSS”). If the consumption of milk with breakfast cereal were taken into account, fewer Kellogg products would be classified as HFSS because the nutrient values of the added milk would contribute to the scoring. Kellogg argued that an approach which measured the relative levels of fat, sugar or salt in the product itself, rather than the health impact of the product as typically consumed, was disproportionate and irrational.

The Supreme Court on statelessness, EU citizenship and proportionality

31 March 2015 by Hannah Noyce

Pham v Secretary of State for the Home Department [2015] UKSC 19 – read judgment

Angus McCullough Q.C. and Shaheen Rahman from 1COR acted as Special Advocates earlier in these proceedings. They had nothing to do with the writing of this post.

On first glance, this was not a judgment about human rights. It concerned the definition of statelessness under article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, and raised issues of competence and jurisdiction in relation to EU citizenship. Its specific interest for human rights lawyers lies primarily in the observations about the principle of proportionality; and in where the case, which most certainly does raise human rights issues, is likely to go next.

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Abu Qatada appeal was in time but will not be heard by Grand Chamber

9 May 2012 by Adam Wagner

So now we know. Sort of. Five judges of the European Court of Human Rights have ruled that Abu Qatada’s case will not be heard on appeal by the court’s Grand Chamber, despite the appeal application being lodged on time.

The Court’s somewhat scanty press release reveals little:

The Panel found that the request had been submitted within the three month time-limit for such requests. However, it considered that the request should be refused.

The post-match report is as follows. Joshua Rozenberg got it right in The Guardian, Carl Gardner won the day with his excellent series of posts (although his prediction that the GC would want to hear the case was wrong) and I hedged my bets on the timing point in my latest post so I would have got it right – and wrong – either way. Those who saw me interviewed on the BBC News earlier today will not have seen the part they edited out, which was me wrongly predicting, for similar reasons to Carl Gardner, that the Grand Chamber would want to hear the appeal if the time limit issue was overcome.

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Another door closes for the Chagossians

6 July 2016 by Dominic Ruck Keene

In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  [2016] UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.

Read More.

The Chagos Saga

Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.

The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.

The judgments

Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.

Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.

Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO.  Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.

Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.

Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.

Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.

The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.

Where next?

It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.

On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs [2016] EWHC 1444 (Admin).