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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/15/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) – Read judgment
Update | In an earlier version of this post a question was raised by the author concerning the implications of funding restrictions within the department of the Official Solicitor for cases similar to E’s. The author is happy to make clear that no criticism is made of the actions of the OS in this or indeed any other case in the judgment of Peter Jackson J or in this post.
Mr Justice Jackson has ruled that it would be lawful and in the best interests of a 32 year old woman (referred to in the judgment as “E”) for her to be fed, using physical force or chemical sedation as necessary, for a period of “not less than a year”.
The judgment has sparked considerable press attention, and is also reported to have drawn criticism from Rochdale Lib Dem MEP Chris Davies. Against that background, this post intends to offer a modicum of analysis as to what was decided, why and what lessons the case holds for the future.
Salvesen v. Riddell [2013] UKSC 22, 24 April 2013, read judgment
When can an agricultural landlord turf out his tenant farmer? The answer to this question has ebbed and flowed since the Second World War, but one element of the latest attempt by the Scottish Parliament to redress the balance in favour of tenants has just been declared incompatible with Article 1 of the 1st Protocol (A1P1) as offending landlords’ rights to property. The Supreme Court has so ruled, upholding the Second Division of the Court of Session’s ruling in March 2012.
The reasoning is not just of interest to agricultural lawyers either side of the border. But a brief summary of the laws is necessary in order to identify the invidiousness of the new law as identified by the Court – and hence its applicability to other circumstances.
As will be seen from my postscript, the decision of the court below to the same effect appears to have had tragic consequences.
These appeals – Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs and Dalston Projects Ltd v Secretary of State for Transport – were a test case for the operation of the UK’s sanctions regime introduced in response to Russia’s invasion of Ukraine.
The Supreme Court confirmed that while the court’s task is to assess proportionality for itself, a wide margin of appreciation will be afforded to the executive in judging how best to respond to and restrain Russia’s actions in Ukraine.
Marches are popular in Belfast, and now is the marching season. Since the decline of sectarian violence in Northern Ireland these displays of loyalty have ceased to attract the controversy they did. Until this week, at least, in the run up to the Belfast Pride march on Saturday 5 August. The Irish Times reports that uniformed gardaí from the Republic of Ireland are due to join their Police Service of Northern Ireland colleagues, also in uniform, at this year’s gay pride parade in Belfast on Saturday.
The PSNI already has confirmed that for the first time its members will be permitted to parade at the Belfast Pride event in uniform. Previously they could march in civilian clothing only.
Now the PSNI has invited the Gardai to accompany them at the parade, an invitation that has been accepted. PSNI vehicles with signs reading “Policing with Pride – Hate Crime is Unacceptable – To Stop It, Report It” will feature at Pride events in Belfast, Newry and Derry.
The local press is loud with criticism of this decision, which, it is said, privileges LGBT discrimination over other forms of hate crime. Critics have pointed out that the PSNI would be “unlikely” to allow uniformed officers to take part in a Christian march that expressed a view that homosexuality was a sin. The PSNI is governed by a code of neutrality, and they are prohibited from participating in political protests.
The PSNI are supposed to be neutral and are prohibited by their own code of ethics from participating in political activity. There is also a duty on the PSNI, under article 6.2 of their code of ethics, to treat all persons equally regardless of status. Loyalists have claimed that there is no community that has experienced more hate crime than the Orange community, with hundreds of arson and criminal damage attacks on their halls. “But no one is suggesting that the PSNI should show opposition to these crimes by participating in Orange parades,” Jim Allister of the Traditional Unionist Voice added. Other voices from the loyalist sector have asked whether the “liberal left” would be
so supportive of the PSNI marching alongside a loyalist flute band with a banner saying “End the hatred of Orange culture – report all attacks on Orange Halls”?
The parade, which campaigns, amongst other things, for the legalisation of gay marriage in Northern Ireland, is marked as sensitive on the Parades Commission website. For this reason questions have been raised about the practical consequences of police participation; how can the event be impartially policed when uniformed officers are amongst the marchers?
Northern Ireland is the only region of the UK where gay marriage remains outlawed.
Hilal Abdul-Razzaq Ali Al‐Jedda v Secretary of State for the Home Department March 29 – read judgment
The Court of Appeal has allowed the suspected terrorist Al‐Jedda’s appeal against the Home Secretary’s decision to deprive him of his British nationality.
The appellant, an Iraqi refugee, was granted British nationality in 2000. Four years later however he was detained by British forces in Iraq on grounds of suspected terrorist activities. At the end of 2007 he was released from detention without charge, but just prior to his release, on 14 December 2007, the Secretary of State for the Home Department made an order under the British Nationality Act 1981 depriving him of his British nationality. As a consequence of this order the appellant has not been able to return from Turkey to the United Kingdom. His appeal against this order has been upheld on the basis that he had not regained Iraqi nationality when his British nationality was revoked. He thus requalifies for citizenship in this country. Continue reading →
1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post.
Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.
If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:
UKHRB readers may be interested to see a paper co-authored by Guy Mansfield QC, formerly member of 1 Crown Office Row. Guy – Lord Sandhurst QC – is a past Chairman of the Bar of England and Wales, and a current member of the Executive of the Society of Conservative Lawyers. He has kindly given us permission to link to the paper here.
Anthony Speaight QC is Chair of Research of the Society of Conservative Lawyers, and was a member of the Government Commission on a UK Bill of Rights.
Here is a very short summary of the paper’s arguments.
This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.
Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2 – Read judgment / press summary
The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under article 2 of the European Court of Human Rights (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.
My initial thoughts are that this is potentially very important, and follows on from Savagein gradually expanding the reach of Article 2, and therefore the liability of mental health hospitals to patients and (as was crucial in this case) their families. The court observed that Ms. Rabone, who committed suicide after being granted 2-days of home leave by the hospital, could have been detained under the MHA in any event, so the distinction between a voluntary and detained patient was of form rather than substance.
Nonetheless, the decision appears to endorse an “each case on its own facts” approach, and will affect human rights damages claims and arguably so-called article 2 inquests too. Here is a particularly quotable line from Lady Hale at paragraph [92]:
“There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage…”
The week began with the first Opposition Day of 2021, with Labour choosing to put council tax and employment rights centre of the Parliamentary stage. This followed an admission last week by Business Secretary Kwasi Kwarteng that the government was reviewing certain workers’ rights which had been saved post-Brexit as retained EU employment law. Responding to allegations that the government planned to scrap the 48-hour maximum work week and change the rules around rest breaks and holiday pay calculation, he tweeted ‘[w]e are not going to lower the standards of workers’ rights’. During the Opposition Day Debate Mr Kwarteng confirmed the review was no longer happening and that the government would not row back on the 48-hour work week, annual leave entitlement or rest breaks at work.
Thanks to David Anderson (@bricksilk) for his latest post about the validity or otherwise of the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and whether they are within the scope of the powers conferred upon the Government by statute. Anderson calls for reports on legal developments across Europe in response to the pandemic. He has provided links to interesting rulings in Germany, specifically Bavaria which has some of the most restrictive curfews. Here’s my attempt at a translation/paraphrase of the press reports of two of these decisions.
In a nationwide comparison, the Bavarian regulations are particularly strict compared to the other Laender [see the table above]. However, there is now public resistance to the Bavarian movement restrictions . On 24 March the Administrative Court in Munich confirmed the effectiveness of the Bavarian movement restrictions that were provisionally suspended in two individual cases. However, the validity of the restrictions remains untouched, according to the court.
The court ruled that the Bavarian state government should amend their rules after the introduction of initial restrictions in the Corona crisis after successful challenges were made by two citizens. However the initial restrictions remain valid nationwide.
Prime Minister Markus Söder (Christian Social Union) said after a cabinet meeting in Munich on Tuesday, that following this ruling the legal basis of these movement restrictions would be changed immediately, although until such changes come into force, he stressed that the initial restrictions still apply.
Leaving one’s own home has been prohibited everywhere in Bavaria with only limited exceptions. These exceptions include travelling to work and necessary shopping, urgent visits to the doctor, sports and walks in the fresh air – but only alone or with the people with whom you share a home.
The chamber of the Administrative Court responsible for health law has temporarily suspended the effect of the initial restrictions in favour of two individuals “for formal reasons” (decision of 24.03.2020, Az. 26 S 20.1252 and M 26 S 20.1255). The substantive legality of the curfews was not called into question in the court. In its statement of grounds, the court merely doubted whether it was permissible for the Free State of Bavaria to have made these initial restrictions by way of general (administrative) decree rather than by statutory instrument.
The court’s decisions only had an effect in relation to the two applicants. Restrictions remain valid for all other people in Bavaria, and therefore nothing would change, the court emphasised.
Home Secretary Priti Patel pledged a ‘fair but firm’ overhaul of the UK’s asylum system in the Commons on Thursday. The proposed measures aim to crack down on the criminal smuggling operations which helped 8,000 people cross the Channel by boat last year.
Under the Home Secretary’s proposals, asylum seekers would have their claims determined according to how they arrived in the UK. Those using ‘safe and legal resettlement routes’ directly from the countries they are fleeing, such as Syria and Iran, would obtain automatic permission to remain in the UK indefinitely. But anyone arriving with the aid of services offered by criminal smuggling gangs would only ever receive temporary permission to remain and would be regularly assessed for removal from the UK.
The Home Secretary declared that such a regime would deter prospective asylum seekers from using the EU countries in which they first arrive as springboards for reaching the UK, and encourage them to make claims there instead.
The UK Supreme Court Blog has posted a useful round-up of key European Court of Human Rights judgments from the past few months.
The following cases catch the eye (all summaries courtesy of the UK Supreme Court Blog):
Al-Saadoon and Mufdhi v. the United Kingdom(Application no. 61498/08) (2 March 2010) This was a case about two Iraqis taken prisoner by the British troops in Iraq and handed over to the Iraqi authorities against the ECtHR’s previous orders. The ECtHR found a violation of Article 3 (prohibition of torture) as the two prisoners had been exposed to the death penalty which they would face in Iraq. This judgment is important in the context of a series of decisions and judgments on the death penalty (see paragraph. 123 of the judgment).
The drowning of several hundred migrants attempting to cross the Mediterranean has dominated headlines in recent weeks, prompting a special meeting of the European Council on 23 April. The UN High Commissioner for Refugees has called for ‘a robust search-and-rescue operation in the Central Mediterranean, not only a border patrol’.
Under the ECHR, migrants rescued at sea cannot be returned if there is a ‘real risk’ of treatment that is incompatible with the absolute provisions of the Convention. Jacques Hartmann and Irini Papanicolopulu consider claims that human rights law therefore creates a perverse incentive for EU Member States not to conduct operations proactively.
Nixon & Anor, R (On the Application of) Secretary of State for the Home Office [2018] EWCA Civ 3, 17 January 2018 – read judgment
The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation “out of country” rather than in the UK. Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .
Background
The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department[2015] EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here. The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness. The Supreme Court reversed the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts. Continue reading →
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Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) – Read judgment
1 Crown Office Row’s 
This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.
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