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9 September 2020 by Sapan Maini-Thompson
In Soltany and Others v SSHD [2020], the High Court dismissed a challenge to the conditions at Brook House Immigration Removal Centre (IRC), which at the material times in 2017 and 2018, was run by G4S.
The claim for judicial review, which was brought by three individuals of Afghan origin, principally contended the night-time lockdown regime, pursuant to which detainees were locked in their rooms overnight from 9pm to 8am, was both “unnecessary and unduly harsh” [2].
Additionally, two of the claimants argued that the combination of the night state, which meant that observant Muslims had to perform some of their daily prayers in their rooms, and the conditions of the rooms (especially the proximity of the toilet) amounted to unlawful religious discrimination.
In a complex judgement extending to over 400 paragraphs, Cavanagh J refused the application on each ground. First, the Court held that Brook House’s overnight lock-down regime and room conditions are compatible with both ECHR Articles 5 and 8. Second, the Defendant did not act contrary to either the common law or Article 5 in failing to give reasons for the allocation of detainees to specific removal centres. Third, there was no religious discrimination under ECHR Article 9, either read alone or together with ECHR Article 14. Nor was there any indirect discrimination contrary to section 19 of the Equality Act 2010.
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7 February 2010 by Adam Wagner
Prisoners could sue if not allowed to vote in the 2010 general election, according to the Barred from Voting Campaign, organised by the Prison Reform Trust.
The group are seeking to remind the Government of the four year old judgment of the European Court of Human Rights in Hirst v UK, which arose out of the 2002 case of R v Home Secretary ex parte Hirst. The European Court held that Section 4 of the Representation of the People Act which prevents prisoners from voting is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights.
The Government has as yet not addressed the Court’s ruling; according to The Guardian, ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate. With the election looming, the Government may well be be vulnerable to a legal challenge.
23 September 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
UPDATED: Thank you to all the those who pointed out my errors in this post – hopefully you will now find they are corrected.
In the news
A few fairly major issues to chew over this week: we have commentary on the controversial Sarah Catt abortion case, responses to the Strasbourg decision on indefinite prison sentences in the UK, and more additions to the debate about religion and human rights, among other things.
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24 May 2012 by Guest Contributor
Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
Adam Wagner has compared the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK. Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.
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17 December 2010 by Adam Wagner
Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
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21 February 2011 by Melina Padron
23 March 2014 by Celia Rooney
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.
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9 September 2010 by Guest Contributor
The Queen on the application of Arvdas Klimas v. Prosecutors General Office of Lithuania [2010] EWHC 2076 – Read judgment
We welcome this guest post by Michal Jorek
Will a court execute an extradition request if the prison conditions and treatment of prisoners in the requesting State are such that detention there would constitute torture, inhuman or degrading treatment or punishment?
This question was recently considered by the High Court in The Queen on the application of Arvdas Klimas v. Prosecutors General Office of Lithuania. Although the Court was clear in its pronouncement, it is arguable that aspects of its reasoning are at the very least questionable.
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1 June 2016 by Fraser Simpson
Photo credit: The Guardian
Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.
The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.
by Fraser Simpson
Background
The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.
The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.
Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance.
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20 September 2011 by Graeme Hall
As we recently posted, the UK Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. The Commission made recommendations to achieve the “effective functioning of the Court over the long term”, following which Joshua Rozenberg stated that “everybody now agrees on the need for fundamental reform. It has to happen. And it will.”
But if there is such agreement, can the Commission’s recommendations produce any meaningful reform? Or do the proposals simply rehash old ideas?
by Graeme Hall
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6 August 2021 by Robert Kellar QC
In Hughes v Rattan [2021] EWHC 2032 (QB), the High Court was asked to answer the following question. Was the owner of a dental practice liable for the dental negligence of a self-employed dentist engaged to work in the practice? The claim arose from NHS care provided by three different associate dentists. The preliminary issue was whether the practice owner was liable by reason of: a) a non-delegable duty of care; or b) vicarious liability. The Court answered: “yes” and “yes”.
Non-Delegable Duty of Care
The Judge analysed the issue of non-delegable duty by reference to the principles affirmed by Lord Sumption in Woodland v. Swimming Teachers Association and others [2013] UKSC 66.
(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is a characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to preform those obligations i.e. whether personally or through employees or through third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
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27 May 2012 by Wessen Jazrawi
“I believe that it should be a matter for parliament to decide, not a foreign court.”
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
The biggest news of the week this week was the decision of the European Court of Human Rights in the Scoppola v Italy case; the latest in the long-running prisoner voting saga. The Court refused to overrule its 2005 decision in Hirst No. 2 but also found that proportionality does not require individual determination by a judge on a case by case basis. There was predictable anger from the tabloid press plus some more cogent articles, some of which have been set out below.
by Wessen Jazrawi
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20 October 2010 by Adam Wagner
Updated | The House of Lords debated the vexed issue of prisoner voting yesterday, leading to a somewhat bad-tempered clash between a former Lord of Appeal and the new minister of state for justice.
The debate related to the 2005 decision of Hirst No 2, in which the European Court of Human Rights held that preventing prisoners from voting breached their human rights. The judgment has not yet been implemented in the UK, leading to repeated condemnations from the Council of Europe, which monitors compliance the Strasbourg court’s rulings. The CoE will reexamine the issue on 30 November, when it may decide to sanction the UK.
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31 October 2012 by Rosalind English
Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rahmatullah (Respondent). (Read judgment)
The Supreme Court has ruled that the law of habeas corpus should not be used to order the US to return a Pakistani national held in US custody to the UK.
Yunus Rahmatullah was captured by British forces in Iraq in 2004 and later taken to Bagram airbase in Afghanistan having been the subject of “extraordinary rendition”. As a suspected insurgent he remains in US custody, without charge.
The charity Reprieve challenged the Court of Appeal decision to cancel a release order in favour of Mr Rahmatullah after they received notification from the US authorities that they intended to return him to Pakistan and would be dealing with the Pakistani authorities directly. The UK Government also appealed, arguing that the Court of Appeal erred in finding that a writ of habeas corpus can be issued where a respondent has sufficiently arguable control of an applicant, and failed to have proper regard to the implications for foreign relations in requiring a request for release to be made to a foreign sovereign state.
The following summary of the facts and reasoning is based on the Supreme Court’s press summary. See my previous post on the Court of Appeal’s ruling on habeas corpus in the case of Rahmatullah.
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2 April 2017 by Rosalind English
Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment
Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).
Background facts and law
The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.
In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.
The Court concluded – with an interesting dissent from Charles J – that this was a matter for parliament. A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.
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