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Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
Chiragov and Others v. Armenia (App No 13216/05) – read judgment
In two important decisions, the Grand Chamber of the Strasbourg Court has held that the forced displacement of peoples from the disputed region of Nagorno-Karabakh during the armed conflict between Azerbaijan and Armenia constituted a violation of Article 1 of Protocol 1 (right to the peaceful enjoyment of property) and Article 8 (right to a private and family life) of the European Convention on Human Rights.
The case of Chiragov which concerned the forced displacement of Azerbaijani nationals was decided in parallel with the Grand Chamber judgment in Sargsyan v Azerbaijan (found here). Sargsyan was delivered on the same day and reached the same conclusions in respect of Armenian nationals forced to flee from Azerbaijani territory. Continue reading →
The Children Act 1989 (CA 1989) received Royal Assent on 23
November 1989 (30 years ago); and it was in force from October 1991. It was a
major reform of children law which required everyone – parents, children (when
of ‘understanding’), judges, social workers, health professionals and lawyers –
to learn a new set of legal concepts and attitudes. But what about children’s
rights? And what has happened to the law’s regard for those rights since 1989?
The Act required courts to consider a child’s ‘wishes and
feelings’ when that child’s welfare was in issue in a court. In parallel with
this, United Nations Convention on the Rights of the Child 1989 Art 12.1 –
though not formally part of the Act – says:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution. Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case. This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties.
The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).
Requiring the bill to maintain full compliance with domestic and international law
Ensuring that Rwanda is only considered a safe county “when and as long as” arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice (for example ensuring that asylum seekers are not sent back to the countries from which they fled).
Allowing decision-makers, such as immigration officers, courts and tribunals to consider whether or not Rwanda is a safe country and to grant interim relief.
Protecting victims of modern slavery from being removed to Rwanda without their consent.
Parliamentarians in France have voted to amend the country’s constitution to include a “guaranteed freedom” of abortion. The measure passed in an overwhelming 780-72 vote. The change was prompted by Dobbs v Jackson’s Women’s Health Organisation, a case in which the US Supreme Court overturned Roe v Wade and so ended the right to abortion for millions of women in the USA.
The people of the Republic of Ireland have rejected proposals to “modernise” the country’s constitution. The country held a referendum to amend Article 41 of the Constitution. Article 41 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” and that the state shall “guard with special care the institution of Marriage, on which the Family is founded”. The proposed changes would have substituted marriage with “durable relationships” and would have replaced the clause relating to mothers’ duties in the home with a clause recognising care provided by family members by “reason of the bonds that exist among them”.
An UN report by the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has found that there are reasonable grounds to believe that conflict-related sexual violence occurred during the 07 October attacks in Israel including rape and gang rape. A separate internal UN report has described widespread abuse of Palestinian detainees including physical and sexual violence. As the humanitarian conditions in Gaza rapidly deteriorate, countries that previously withdrew UNRWA funding, due to allegations that employees of the agency participated in the 07 October attacks, have announced that they are resuming funding. This includes the EU Commission, Sweden and Canada. In his State of the Union address President Biden has put forward a plan to build a “temporary pier” on Gaza’s coastline to distribute aid.
In the courts
The US Supreme Court has unanimously held that Colorado cannot remove Donald Trump from the ballot of the presidential elections. The Colorado Supreme Court had held that Trump was ineligible to appear on the ballot, under Section 3 of the 14th Amendment to the Constitution which disqualifies anyone “engaged in insurrection or rebellion” against the federal government. Section 3 was originally enacted after the US Civil War to prevent supporters of the Confederacy from taking public office. The US Supreme Court held that only Congress, rather than individual states, can enforce Section 3. A particular consideration was the potential for “chaos” if different candidates were eligible in various states.
A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.
In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000. Continue reading →
Conor Monighan brings us the latest updates in human rights law
Max Hill QC. Credit: The Guardian
In the News:
Max Hill QC, the new Director of Public Prosecutions (‘DPP’), has said that rape victims’ mobile phones will no longer be seized “as a matter of course”.
His comments come in the wake of allegations that prosecutors are increasingly making demands to access victims’ personal data. The Association of Police and Crime Commissioners suggested that the CPS been pushing investigators to make more invasive searches, even if officers are satisfied that they have pursued all reasonable lines of inquiry. This may be part of an effort to improve conviction rates.
Big Brother Watch wrote to the Information Commissioner’s Office (ICO) last week arguing against this trend. The campaigning group said it was becoming ‘routine’ to download the contents of sexual offence victims’ phones, and that the information could legally be stored for 100 years. In response, the ICO is considering widening its investigation into the use of victims’ information. It also spoke out against accessing rape victims’ mobile phone data and personal records.
Max Hill QC says that he aims to boost public confidence in the CPS and would improve the disclosure of evidence in criminal trials. The organisation has been struggling under 25% budget cuts and revelations of recent disclosure failings. Continue reading →
For those looking to keep on top of their CPD over the summer, in Episode 204 Emma-Louise Fenelon interviews John Whitting KC and Robert Mills about recent developments in clinical negligence.
Robert Mills takes listeners through three recent cases on material contribution:
CNZ v Royal Bath Hospitals NHSFT & The Secretary of State for Health and Social Care [2023] EWHC 19 (KB)
CDE v Surrey and Sussex Healthcare NHS Trust [2023] EWCA Civ 1330
Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377
John Whitting KC outlines developments in the law of informed consent:
Bilal and Malik v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605
McCulloch and others v Forth Valley Health Board [2023] UKSC 26
And the episode concludes on a discussion of expert evidence:
Woods v Doncaster and Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB)
CE (Cameroon) [2023] UKAITUR PA011122020
The podcast has previously covered expert evidence in the following episodes:
Disaster Avoidance for Experts with Margaret Bowron KC here
Disaster Avoidance for Experts with Neil Sheldon KC here
The United Kingdom Internal Market Bill is due for second reading in the House of Lords on 19 October 2020. It is not an understatement to say that the Bill contains provisions which represent one of the most egregious assaults on the Rule of Law in recent times, nor is it an understatement to say that there is a remarkable hostility to it from across the political spectrum, and across the Brexit divide.. It has also united the UK’s legal profession against it. In Reports for the Bingham Centre for the Rule of Law here and here we pointed out how this violation of international law breaches the Rule of Law. I have also previously argued that the Bill contains an unacceptable breach of domestic law. The former Attorney General Dominic Grieve argued that the Bill contained an unacceptable ouster clause. I wish now to hone that argument by characterising what is now clause 47 of the Bill as containing not just a simple ouster clause, but the mother of all ouster clauses.
Brief explanation / history of ouster clauses
An ouster clause is a provision in primary legislation which ousts the jurisdiction of the courts. It deems that provision (or decisions made under or in accordance with that provision) as not susceptible to judicial challenge. An ouster clause makes the subject matter of the clause non-justiciable, putting it outside or beyond the reach of the courts.
Parliament and the courts have played a game of cat and mouse over ouster clauses for at least the last 70 years.
The House of Commons privileges committee has issued its response to the legal opinion of Lord Pannick KC and Jason Pobjoy (on behalf of Boris Johnson) in respect of its inquiry into ‘partygate’. Pannick’s opinion criticised the committee’s proposed conduct by identifying 6 areas where a ‘fundamentally flawed approach’ has been adopted. The most substantial criticism was that the committee did not consider intent to be necessary in proving that Johnson misled the House. The weight behind this argument was that there would be a ‘chilling effect’ on Ministerial comments if unintentional mistakes were held to be contempt. In their response, the committee described this proposition as ‘wholly misplaced and itself misleading’. The response also says that the opinion is ‘founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law’. Questions have been raised as to both the method of publication of the opinion (which was not shown to the committee as is convention) and why the matter was not arranged by the government legal service.
The Home Office plans to re-open immigration detention centres as Suella Braverman indicates that she will take a harder line on immigration than Priti Patel, her predecessor. The plans are for 2 centres to open in order to detain 1,000 male asylum seekers, and to increase the number of people the Home Office can imprison. The plan is specifically linked to the detainment of people before they are sent to Rwanda, at a projected cost of £399m. The new contracts come after the former prison ombudsman, Stephen Shaw, published two comprehensive and highly critical reports on immigration detention, though officials stress they will take this into consideration.
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Josef. K the protagonist of Kafka’s novel ‘The Trial’ was an ambitious and successful banker prior to his unexpected arrest. The criminal charges brought against him were never explained because they were beyond the comprehension of all but the most senior judges. Attempting to understand his guilt, consumed K’s every thought – he was distracted at work, subservient to his lawyer and ultimately docile when led to his execution. ‘The Trial’ eloquently argued that transparency is a prerequisite of accountability. In the Age of the Algorithm, Kafka’s novel is now more relevant than ever.
Machine learning algorithms increasingly regulate our lives making decisions about us in finance, education, employment and justice. Ultimately, it will become pervasive in most, if not all aspects of decision making in the foreseeable future. But what is a machine learning algorithm? How does it decide? What rights do data subjects have? This article aims to answer all three of these questions.
Abortion in Northern Ireland has had a fraught and frequently distressing history. Until 2019 when the UK Parliament reformed the law, the jurisdiction had the most restrictive approach to abortion in the UK. But even this reform has not reformed the reality, either for those seeking abortion services or information and counselling on such services or for those who work at providers of such services lawfully. I have previously written about the situation as it stood in March 2021, and the reality has changed little since then, with two notable exceptions. In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill (Northern Ireland) (‘SAZ Bill’) to create buffer zones around lawful abortion providers, in an attempt to criminalise the harassment and intimidation of people who seek or work in such places. On 2 December 2022, tired of the glacial pace and political controversy in commissioning abortion services, the Secretary of State for Northern Ireland moved to commission such services himself. In the interim, the Attorney General for Northern Ireland (‘AGNI’) referred the SAZ Bill to the UK Supreme Court to determine whether it was lawful.
But the SAZ Reference also drew another ECHR issue to the Court’s attention: the assessment of proportionality and reasonable excuse defences in criminal trials involving protests. The main points here were the consideration of the Court’s previous judgment in Ziegler and the judgment of the Divisional Court (England and Wales) in Cuciurean. Unusually for a devolution reference, therefore, the Supreme Court sat as a panel of seven Justices. The SAZ Reference judgment was unanimous and authored by Lord Reed.
“It sometimes seems to me that it is not so much extremism as normalisation that we have to fear”, Hall observed.
It is indeed an important and nuanced reflection on the subject that is worth summarising again on the UKHRB for readers who are not subscribed to Rozenberg’s Substack or who have missed it for any other reason.
Jonathan Hall KC’s lecture articulates a compelling case that contemporary anti‑Jewish agitation cannot be treated as routine protest but must be recognised as a vector of risk for real-world violence and ultimately terrorism. His core insight is that what threatens liberal democracy is less spectacular “extremism” than the slow “normalisation” of sectarian calls to violence, particularly against Jews. For our lawyer readers, the speech matters because it shows how existing doctrines on precaution, public order and incitement must be read through the lens of this normalisation if law is to discharge its protective function without abandoning its commitment to free expression.
Department of Health v. Information Commissioner et al [2015] UKUT 159, 30 March 2015, Charles Jread judgmentSimon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests. Continue reading →
Access to environmental justice is as topical asever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.
One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.
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Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary
OPQ v BJM [2011] EWHC 1059 (QB – 
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