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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/21/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
Stephen McIntyre v Information Commissioner (Environmental Information Regulations 2004) [2013] UKFTT 156 (17 May 2013) – read judgment and [2013] UKFTT 51 (7 May 2013) read judgment
These are the latest in a series of freedom of information requests for disclosure of material from the UEA’s Climatic Research Unit (CRU). These requests arose following the ‘climategate’ affair where hacked university emails suggested that individuals within CRU might have attempted to abuse the process of peer review to prevent publication of opposing research papers and evidence. Hence the sensitivity of the data to both requester and CRU, and the passions engendered on these appeals.
Both cases turned on whether disclosure could be denied on the basis of the public interest exception to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material. Continue reading →
Global Alliance Against Industrial Aquaculture v. Scottish Ministers, 26 November 2012 read decision
An interesting and robust decision from the Scottish Information Commissioner. An NGO (just look at the tin) asked the Scottish Ministers for information about seal culling licensed by them. The Scottish Ministers did not provide all the information sought; they said which companies had received the licences, and the total number of seals killed, but did not say who killed how many seals where – thus, doubtless, stymieing any focussed debate and engagement by the NGO on the justification for the killings. The industry’s position appears to be that such shootings only took place against occasional rogue seals.
Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling
The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.
In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.
The circumstances in which a court should prevent the press from reporting information about famous people has long provoked debate. The decision of the Court of Appeal in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 is no exception, attracting extensive press coverage and comment from the #MeToo movement.
In a unanimous judgment, the Court of Appeal overturned the decision of Mr Justice Haddon-Cave in the High Court and granted an interim injunction to the Appellants/Claimants.
The decision had the effect of temporarily restraining publication of certain information which was alleged by the Claimants to be confidential and disclosed in breach of non-disclosure agreements – namely allegations of sexual and racial harassment made against a well-known (and at the time unidentified) leading businessman – pending a full trial.
However, Lord Hain then went on to disclose under Parliamentary privilege that the accused businessman was Sir Philip Green. He said that given the “serious and repeated” nature of the allegations he felt under a “duty” to name him, and publication of this information was “clearly in the public interest”. Continue reading →
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.
On the morning of the 14 August 2014, the Berkshire home of Sir Cliff Richard was searched by South Yorkshire Police (‘SYP’) in connection with allegations of historic child sexual abuse. The BBC broadcast the search more or less as it was taking place, giving it extensive coverage, including aerial shots by helicopter. The story was then picked up by other news media extending its coverage both in this country and aboard. Sir Cliff was not in the UK while his home was searched but viewed the broadcast. He was subsequently questioned about the allegations but was neither arrested or charged and was told in 2016 that he was no longer under investigation.
At the heart of Sir Cliff’s claim was a challenge to media organisations in the reporting about those named by police as being subject to investigation for serious criminal offences. In the face of increasing concern about the public naming of suspects questioned about historic sex offences, the Home Affairs Select Committee had recommended that those accused of such offences should be entitled to anonymity up to the point of charge (HC 962, Pre-Charge Bail, Seventeenth Report of Session 2014-15).
Lord Carlile and others v Secretary of State for the Home Department – read judgment
The High Court has upheld an order by the Home Secretary preventing Maryam Rajavi, a prominent Iranian dissident, from speaking in Parliament. The exclusion order was imposed because of concerns about the deterioration of bilateral relationships between this country and the Iranian government, and fears that if the exclusion order was lifted there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic. For further details of the Home Secretary’s decision see Henry Oliver’s excellent discussion of the case “Free Speech and Iranian Dissent in Parliament”.
The claimants contended that the Secretary of State’s exclusion of Mrs Rajavi was unlawful, as an unjustified and perverse infringement of their common law and Convention right of free expression, rights that are all the more important and precious where those involved are members of the legislature. The court dismissed these arguments, albeit with considerable reluctance. Continue reading →
(1)A Chief Constable, (2) AA v (1)YK, (2)RB, (3)ZS, (4)SI, (5)AK, (6)MH, [2010] EWHC 2438 (Fam) – Read judgment
The High Court has given guidance on the role which special advocates may play in forced marriage and honour violence cases. The controversial special advocates system has been used in anti-terrorism trials to prevent national secrets being revealed to terrorist subjects. However, recently the courts have roundly rejected attempts for the advocates to be used in non-criminal scenarios, on the basis that open justice is a fundamental legal right.
Forced marriage cases often involve information which it is in the public interest not to disclose because to do so would, for example, endanger police informants. Special advocates are not normally needed, because the legislation in question allows the courts to make orders to prevent forced marriages without those suspected of attempting to force a marriage from being notified at all.
The European Court of Human Rights has ruled that states have a broad margin of discretion in applying their criminal law to cases of assisted suicide. The applicant’s conviction may have constituted an interference with his rights, but that interference was prescribed by the Danish criminal law, which pursued the legitimate aims of the protection of health and morals and the rights of others. Denmark had not acted disproportionately by convicting him.
Law Pod UK recently ran an episode with former Court of Appeal judge Sir Stephen Sedley and Trevor Moore, the director of the campaign group My Death, My Decision, in which we dealt with this difficult subject in detail. Sir Stephen is a victim of Parkinson’s disease and his contribution to the debate is profoundly important. I have therefore quoted extensively from the article Sir Stephen wrote for the London Review of Books in October 2021, “A Decent Death”.
Those campaigning for a change in the law in this field object to the use of the word “euthanasia” and I have respected this position in the following case report. It should be noted at the outset that the applicant physician was a member of an association called “Physicians in Favour of Euthanasia”. This is the English translation. The Danish suggests something closer to “assisted dying”: ” Aktiv Dødshjælp”.
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
The debate over the European Union’s Charter of Fundamental Rights is already mired with misunderstanding (see this and this), but amazingly Saturday’s Times (£) managed to up the stupid-quotient by another few notches.
The headline was “Ministers to block ‘right to marry’ in EU backlash“. Apparently the Government has “vowed to block a fresh push to introduce new EU human rights, such as the right to marry and the right to collective bargaining, into Britain“. And as the Times’ political editor Francis Elliot (not to be confused with the generally sound legal correspondent Frances Gibb) reported:
The charter enshrines a host of rights not found in other declarations, including personal, work and family relations. One of them is a proposed “right to marry and found a family”.
The only problem is that… the right to “marry and found a family” already exists in the European Convention on Human Rights. It’s in Article 12. It has been there since the UK signed up to the ECHR in 1953. Here it is:
It may come as a surprise that there still exists a country or countries in the enlightened West which do not regard sexual intercourse without consent within marriage as rape – or at least sexual assault. After a long campaign in this country, the courts of England and Wales finally capitulated in October 1991, recognising marital rape as a crime in the landmark case of R v R [1991] UKHL 12. In his judgement, Lord Lane confirmed: “The idea that a wife consents in advance [i.e. by being married] to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable.”
This was a long cry from the position that had held before, best expressed by Justice Henry Hawkins in 1888, that “The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part but is mere submission to an obligation imposed on her by law.”
Now comes a judgement against France that shows that in some pockets of the Council of Europe, the old rule still applies, even if the criminal law has established the possibility of rape within marriage.
The judgment is presently only available in French, so I give a fairly detailed summary below.
Background facts
In July 2015, the applicant sued her husband for divorce on the grounds of fault. She claimed that he had prioritised his professional career over their family life and that he had been irascible, violent and hurtful. Her husband counterclaimed that the divorce be granted on the grounds of the applicant’s exclusive fault, arguing, among other things, that she had failed in her marital duties for several years. Alternatively, he requested a divorce on the grounds of permanent breakdown of the marital relationship. In a judgment of July 2018, the family court judge of the high court considered that none of the spouses’ claims were substantiated and that the divorce could not be granted on the grounds of fault. He granted it on the grounds of permanent breakdown of the marital relationship. The applicant appealed this judgment. In November 2019, the Court of Appeal granted a divorce for fault, the exclusive fault of the applicant, on the grounds that she had acknowledged having ceased all intimate relations with her husband since 2004, which constituted a serious and repeated violation of the duties and obligations of marriage, making the continuation of their life together intolerable. [my italics] The applicant’s appeal on points of law was dismissed in September 2020.
Background law
The divorce was granted pursuant to the relevant articles of the French Civil Code, which provide that a divorce may be granted for fault when facts constituting a serious or repeated breach of the duties and obligations of marriage are attributable to one of the spouses and make the continuation of the common life intolerable. It follows from the long-standing but consistent case law of the Court of Cassation that spouses are bound by a marital duty and that its failure to perform may constitute a fault justifying divorce. Although the high court has not reaffirmed this case law since then, it has never been reversed and continues to be applied by the lower courts. French case law does not consider every refusal to have sexual relations to be wrongful. It leaves it to the lower courts to determine whether this refusal is sufficient to characterise a serious or repeated breach of the duties and obligations of marriage justifying divorce. It also acknowledges that certain circumstances such as the age, state of health or abusive or violent nature of the spouse are such as to justify the failure to perform the marital duty. Domestic law gives trial judges the power to assess whether or not the breach of a matrimonial obligation is serious enough to justify divorce.
In this case the Strasbourg Court upheld the wife’s application, finding a breach of her right to private life under Article 8 of the Convention.
Welcome back to the UK Human Rights Roundup, your weekly summary 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.
In the news
Human rights continue to be big news this week, with Andrew Neil’s Rights Gone Wrong? programme exploring the rather divisive issues that Human Rights bring up for the British public. The proposed reforms to the European Court of Human Rights and the Bill of Rights made news again also, along with such controversies as the right to die, open justice and kettling.
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 9 July 2013 – read judgment
As we all know, the Prince of Wales has his own opinions. And he has shared those opinions with various government departments. Our claimant, a Guardian journalist, thought it would be interesting and important for the rest of us to see those opinions. So he made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents.
No joy, says the Administrative Court. Yes, a tribunal had ordered production of the letters, but that order had been overridden by the Attorney-General. What, says anybody used to the idea that courts do their bit, and the government does its bit – that’s unfair, government cannot override what the courts say.
The complication, as we shall see, is that the override is built into FOIA.
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As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – 
The debate over the European Union’s 
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