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R(on the application of Christopher Wilford) v The Financial Services Authority [2013] EWCA Civ 677 – Read judgment
This Court of Appeal judgment further reduces the scope for judicial review of a Decision Notice issued by the Financial Services Authority (“the FSA”, now the Financial Conduct Authority). Indeed it comes close to excluding judicial review of these Notices. This is because there is a statutory mechanism for challenging Decision Notices. This case sheds light on the very limited role of judicial review where there is such a statutory right.
The FSA regulates the financial services industry. Its Regulatory Decisions Committee (“the RDC”) decides whether or not a regulated person has breached the relevant rules and issues Decision Notices.
At present, the lockdown continues. Image: The Guardian
Previously on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights.
In the first of two response articles, Leo Davidson argued that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis.
In this article, Dominic Ruck Keeneand Henry Tufnell argue that the challengers to the legislation have not shown that the measures adopted by theGovernment are disproportionate in the circumstances of the pandemic.
This is a summary of a paper published here and inevitably simplifies the detailed arguments and considerations within it. The article represents the views of the authors alone.
Note:This post involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.
Introduction
The inevitable has finally happened – a letter before action has been sent to the Health Secretary challenging the legality of the various restrictions that cumulatively make up the current Covid-19 lockdown within the UK through the mechanism of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) (‘the Regulations‘). The letter before action builds on the opinions previously outlined by Francis Hoar both on the UK Human Rights Blog and in a previous paper concerning the compatibility of the ‘lockdown’ with the ECHR. This post seeks to develop Leo Davidson’s earlier analysis of those arguments.
Here, we make the argument that there has not been a breach of all or any of the relevant ECHR rights, namely Articles 5 (right to liberty), 8 (right to private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 14 (prohibition on discrimination) and by Articles 1 (protection of property) and 2 (right to an education) of Protocol 1. Further, that there is in fact no deprivation of liberty under Article 5.
We have become used to the courts getting involved, more or less willingly, in religious issues, not least where religious freedoms conflict with legal rules which are said to be inconsistent with the exercise of those freedoms. But as Adam Wagner pointed out, in an earlier round of this litigation concerning two Sikh places of worship (Gurdwaras), the courts have developed rules stopping themselves from deciding certain cases, not least because the courts recognise they don’t know what they are doing once they get themselves immersed in issues of religious doctrine.
Humphreys (FC) (Appellant) v The Commissioners for Her Majesty’s Revenue and Customs (Respondent) [2012] UKSC 18 On appeal from the Court of Appeal [2010] EWCA Civ 56 – read judgment
It has been accepted for some time that the rule discriminates indirectly against fathers, because experience shows that they are far more likely than mothers to be looking after the child for the smaller number of days in the week. The question before the Supreme Court in this case was whether this discrimination is justified or whether the refusal of CTC to a father who looks after his children for three days a week is incompatible with his Convention rights. The Court ruled that in the light of the policy behind CTC, the reduction of child poverty, the discrimination was justified.
Bank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015 read judgment
Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it: here, and my posts here and here.
The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.
In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried. Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.
Re M (Children) [2017] EWCA Civ 2164, 20 December 2017, read judgment
The Court of Appeal reversed the judgment of the High Court that a transgender father from the ultra-Orthodox Jewish community should not have direct contact with her children. The case was remitted to the Family Court for reconsideration.
Facts
The factual background is fully set out in the High Court judgment of Peter Jackson J (as he then was). The parents and their five children are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The mother and children remain there, while the father no longer lives within the community after leaving in June 2015 to live as a transgender woman. Both parents agree that the children should be brought up within the community.
Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.
AJA and others v Commissioner of Police for the Metropolis [2013] EWCA Civ 1342 – read judgment
The words “personal or other relationship” in the section 26(8)(a) Regulation of Investigatory Powers Act 2000 included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who had allegedly had sexual relationships with them
There were two groups of claimants in this case. The first three were represented by Birnberg Pierce & Partners (referred to as “the Birnberg claimants”). The second three were represented by Tuckers (referred to as “the Tuckers claimants”). Both groups alleged that they had suffered violations of their rights under Articles 3 and 5 by the officers for whom the respondents were responsible and that such conduct was contrary to the Human Rights Act 1998 s.6(1). They appealed against a decision that the Investigatory Powers Tribunal had jurisdiction to decide their human rights claims and that High Court proceedings should be stayed pending the IPT’s determination. Continue reading →
AT v Secretary of State for the Home Department [2012] EWCA Civ 42 – Read Judgment
The Court of Appeal has upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him.
The focus of this blog post is on yet another challenge to the imposition of a control order. Introduced by the Labour government in the Prevention of Terrorism Act 2005, a control order is a controversial tool used to restrict and monitor suspected terrorists. They have now been superseded by Terrorism Prevention and Investigation Measures (or “TPIMs”, described by some critics as “control orders lite”), which will in due course have their time in the legal spotlight. For now, there remain a small number of cases brought under the old control orders regime which are being determined. As this decision demonstrates, even their consignment to history has not shielded them from careful judicial scrutiny.
Protective Costs Orders (PCOs) are a relatively new feature on the legal landscape. The Buglife case is of general significance in relation to the procedure and approach to be adopted in relation to PCOs, and associated costs caps, as set out in the Court of Appeal’s judgment of 4 November 2008, which is reported at [2009] Env LR 18 (Buglife (1)). Separately and more specifically, the substantive claim for judicial review is also notable, as an example of the Court’s approach to a planning decision to allow a development on a site of environmental significance. This was also considered by the Court of Appeal: Buglife (2).
Welcome back to the UK Human Rights Roundup, your regular menagerie of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
This week, judicial review continued to take a beating, the Home Office backed down over their ‘Go Home’ campaign and the legal implications behind the twitter threat debacle were considered. And, finally, the immigration and asylum tribunal launched a useful online search service.
The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment
In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –
The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”. Continue reading →
Notably, the Court of Appeal agreed with the High Court’s view that the scheme does result in landlords discriminating against tenants without British passports on the basis of their actual or perceived nationality. However, the Court held that this discrimination was justified.
Criminal Injuries Compensation Authority v First-Tier Tribunal (Social Entitlement Chamber) [2014] EWCA Civ 65, 3 February 2014 – read judgment
When considering whether to award compensation under the Criminal Injuries Compensation Scheme, the board must rest its determination of “crime of violence” on the act causing the injury, not its consequences. A breach of the provisions of the Dangerous Dogs Act is not necessarily a “crime of violence”.
Background facts
In August 2002 a fourteen year old boy, TS, was riding his bicycle along the pavement of a quiet residential street near his home when a small dog, which had escaped from its owner’s garden, rushed up to him barking in an aggressive manner. TS instinctively swerved away from the dog on to the road and into the path of a car. He was seriously injured. He spent four months in hospital and is now quite severely disabled. Continue reading →
Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776 (21 July 2015) – read judgment
In my last post on UKHRB I commented on developments in UK, ECHR and EU jurisprudence relating to procedural fairness in the context of national security.
The developments in this recent case offer some further interesting thoughts on the topic. To explain the case, and put its ramifications in a broader context, this post will be divided into three parts. In the first I outline my original argument as set out in the earlier post. The second will explain the case itself. The third will offer five brief comments on the broader issues the cases touches upon.
In brief, the court in Kiani followed Tariqand held that AF-type disclosure (see below) was not a universal requirement of fairness; the interests of justice could require a lower standard of disclosure without violating the absolute right to a fair hearing. Continue reading →
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R(on the application of Christopher Wilford) v The Financial Services Authority [2013] EWCA Civ 677 – Read judgment
AT v Secretary of State for the Home Department [2012] EWCA Civ 42 – 
Welcome back to the UK Human Rights Roundup, your regular menagerie of human rights news and views. The full list of links can be found 
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