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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)
Good news from the crisis front, although I’m afraid not the one we’re all thinking of: the government’s Agriculture Bill, which sets out its major post-Brexit agricultural policy, has recently passed committee stage and will soon (coronavirus permitting) be presented to the House of Lords. It shows ambition from the government to develop a post-Brexit agriculture policy with laudable commitments to harnessing the power of farmers to help address the climate crisis, and helps to address issues such as food security. Along with the Environment Bill, discussed here, it constitutes some of the core legislation aimed at achieving the government’s Net Zero by 2050 goal.
The government’s haunting refrain, since their 2018 ‘Health and Harmony’ consultation on post-Brexit agricultural policy, has been “public money for public goods”. The bill puts this into practice by giving the secretary of state power to dismantle the subsidy schemes of the Common Agricultural Policy (CAP) and replace it with the Environmental Land Management Scheme (ELMS). Under this scheme, farmers will be awarded for specific activities with ‘public goods’: good practices that further environmental goals in areas such as biodiversity and soil health that the market does not sufficiently incentivise.
H & S (Surrogacy Arrangement) EWFC 36, 30 April 2015
M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post. Read judgment here
H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life. It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place. Continue reading →
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.
All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.
My response to the proposals – as I saw things then – is on my blog here. Thoughts of divorce reform throw up two important human rights issues: one a direct Article 6 question; and the other – which it is surely time for law reformers and the government to confront? – is a discrimination point (Art 14).
But first a little history. The then Labour government, on Leo Abse MP’s private member’s bill, passed with (more or less) approval of the Church of England, the Divorce Reform Act 1969 (in force from 1 January 1971). It was consolidated into Matrimonial Causes Act 1973 (MCA 1973) which represents the modern law and the modern statutory underpinning for financial distribution on divorce or nullity. Mirror provisions apply for same gender couples: Civil Partnership Act 2004. Wholly different finance rules apply for unmarried cohabitants.
Matrimonial causes
The Matrimonial Causes Act 1973 (MCA) section 1 is very simple. There is one ground for divorce: irretrievable breakdown of marriage (s 1(1)). To prove that ground a petitioner (P) must prove one or more of five facts: adultery; behaviour making it unreasonable for P to live with the other spouse/partner (R); desertion for two years; living apart for two (with consent); or five years.
Reformers – including from their inception, the group of family law solicitors, now Resolution – have objected to the blame inherent in the first two facts, and the tendency which this may produce to leave a nastier taste, than need be, in the mouth of divorcees.
Last week the Queen revealed that the newly-elected government had delayed its promised proposals to repeal the Human Rights Act. If this signals a willingness to listen and reflect, rather than an opportunity to bring potential rebels into line, then so much the better. Let us keep talking.
In this post, I want to talk about the European Court of Human Rights in Strasbourg.
The government’s key concern – judging by the Grayling paper published last October – is that the Strasbourg Court has got too big for its boots and won’t stop telling us what to do. Hence the manifesto commitment to introduce a British Bill of Rights. The Prime Minister’s personal gripe – with some justification – is the Court’s 2005 ruling on prisoner voting: Hirst v UK (No.2) (2005) 42 EHRR 849. Continue reading →
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Supreme Court, 29 April 2015, judgment here
Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide to refer various issues to the CJEU in Luxembourg. In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.
The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings. The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.
Dunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment
This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.
Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.
You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.
You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.
The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?
The case arose from the Snowden leaks, which unveiled a vast communications interception program led by the US National Security Agency (‘NSA’). Intercepted communications can include the content of emails as well as ‘metadata’, and can extend to purely internal communications as well as communications with a US connection. For example, an email exchange between Leeds and London may be liable to interception by the NSA simply because it happens to be routed through a US server at some stage along the line. The Regulation of Investigatory Powers Act 2000 (‘RIPA’) establishes a framework for interception of communications by UK authorities, but of course those provisions don’t apply to interceptions by foreign state authorities in their own territory. Once intercepted by the NSA, mutual intelligence sharing arrangements can lead the same Leeds-London email to be handed over to the UK authorities, notwithstanding that the UK authorities would have needed a RIPA warrant had they wished to conduct the interception themselves. Continue reading →
B and G (Children) (No.2) [2015] EWFC 3 – read judgment
Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.
This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.
These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings. Continue reading →
The Court of Appeal has delivered a judgment in PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213 regarding unlawful detention under the Detained Fast Track system, which indicates that a fact sensitive approach must be adopted to each case. This judgment is likely to be particularly relevant in giving guidance to practitioners whose client has previously lost an appeal under the Detained Fast Track Rules who are considering or working on claims for damages for unlawful detention.
Legal Background
In July 2015 the Court of Appeal declared that the Detained Fast Track system, which provided strict time limits for preparing appeals alongside mandatory detention, was unlawful. This was primarily because “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases” ([45], per Lord Dyson). It did not, however, say what would happen to appeals that had been decided under this system, where wrong results may have been reached owing to this unfair procedure.
In R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838(‘TN (Vietnam)’), the Court of Appeal answered this question. Lord Justice Singh emphasised that whether a First-tier Tribunal decision must be quashed owing to unfairness will be a matter of fact based on how far the Detained Fast Track Rules touched on the decision. The Court of Appeal in PN (Uganda) summarised the principles established in TN (Vietnam) as follows:
35. … (1) a high degree of fairness was required in the proceedings; (2) the 2005 DFT Rules created an unacceptable risk of unfairness in a significant number of cases; (3) there was no presumption that the procedure was fair or unfair; (4) finality in litigation was important; and (5) a long delay in locating what was said to be critical evidence might suggest that the unfairness in the 2005 DFT Rules did not make the proceedings in the FTT unfair. The Court noted at paragraph 90 that whether the proceedings were in fact unfair and liable to be set aside would “depend on a careful assessment of the individual facts”.
The decision in PN (Uganda) provides a helpful application of these principles.
In November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.
Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive“. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.
First, the limited bit of good news in the governmental response.
Followers of the blog will know I am developing a new initiative, the Human Rights Information Project (HRIP). The aim is to radically rethink the way we communicate about human rights.
I need some help from you. I want to crowd-source data from readers of this blog about the 50 human rights cases absolutely everyone needs to know about. All contributors will be attributed on the HRIP site and I will publish the text of the best nominations.
This data is going to be a central the project so I would really appreciate you taking the time to help out.
In rejecting the claim of Just for Kids Law, Mr Justice Supperstone affirmed that the legal framework for deploying juvenile covert human intelligence sources (JCHIS) was lawful and adequately safeguarded the child’s welfare.
Midcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here
Out of what some may think to be an everyday spat between the Co-Op (existing supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.
A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.
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