Search Results for: puberty blockers consent/page/21/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
12 January 2016 by Guest Contributor
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective.
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24 June 2021 by Robert Kellar QC
In Khan v. Meadows [2021] UKSC 21 the Supreme Court has revisited the principles to be applied in “wrongful birth” claims: claims for the cost of bringing up a disabled child who would not have been born but for a doctor’s negligent medical advice/treatment. However, the judgment has implications beyond the world of clinical negligence litigation. The Supreme Court has taken the opportunity to clarify the components or ingredients of the tort negligence more generally. In particular, the Court has affirmed the importance of the “scope of duty” principle: a principle which limits the recoverability of damages wherever it applies. In particular, it is not sufficient for a claimant to establish that – with competent advice – they would have made a different decision about their treatment or care. They must also demonstrate that the particular harm that they have suffered fell within the scope of the defendant’s duty of care.
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4 March 2012 by Wessen Jazrawi
Welcome back to your weekly helping 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
The biggest news of the week was the leak of the Draft Brighton declaration, the UK’s proposals for the reform of the European Court of Human Rights. In other news, a spotlight finally began to shine on the Government’s Justice and Security Green Paper, with the Daily Mail suggesting that it might do anything but promote justice and security.
by Wessen Jazrawi
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24 February 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular booster shot 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.
Unsurprisingly, Theresa May’s views on the role of immigration judges sparked much debate this week – yet haven’t stopped the judges making findings that Immigration Rules are unlawful. The consequences of the dismissal of the Pryce jury are still playing out, while the Strasbourg Court has made an important ruling on discrimination based on sexual orientation. Keep an eye out on some new events advertised this week, and various updates in the legal blogging world.
by Daniel Isenberg
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24 May 2016 by Dominic Ruck Keene
IR(Ben-Dor & Ors) v The University of Southampton [2016] EWHC 953 (Admin) (read judgment)
Mrs Justice Whipple dismissed one claim for judicial review, and refused permission to bring a further claim, in respect of decisions made by Southampton University regarding a proposed conference on the legality of the existence of Israel under international law. She held that the University had lawfully withdrawn its permission to hold the conference in April 2015, and refused permission to challenge the University’s subsequent decision to require the conference organisers to meet the conference’s security costs as a condition of allowing the conference to take place at a later date. The conference organisers had claimed that both decisions represented an unlawful interference with their Article 10 right to free expression and Article 11 right to free assembly.
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23 May 2022 by Tabitha Hutchison
In the news:
- On 16 May, the Home Secretary announced in a letter to police forces that she is permanently lifting restrictions on the use of stop-and-search powers under Section 60 of the Criminal Justice and Public Order Act, which give police officers the right to search people without reasonable grounds in an area when they expect serious violence, and to look for weapons before they can be used, or those used in a recent attack. The new changes will lengthen the periods for which the powers can be in force and by which they can be extended, and a lower rank of officer will be able to authorise their deployment. In addition, the officer will now only need to anticipate that serious violence “may” occur, not that it “will” occur. Concerns have consistently been raised around the powers on the basis that they disproportionately affect black and minority ethnic communities. For instance, in the year to March 2021, black people were seven times and Asian people two-and-a-half times more likely to be stopped and searched than white people.
- In the first Ukraine war crimes trial since the invasion by Russia, a Russian tank commander has pleaded guilty to shooting dead a 62-year-old civilian. Even in light of the guilty plea, for the suspect to be convicted and sentenced, the three judges hearing the case will have to reach a unanimous verdict. The suspect faces life in jail.
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28 October 2014 by Guest Contributor
Lords Pannick and Faulks
Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.
Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.
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4 November 2010 by Rosalind English
McLaughlin & Ors v London Borough of Lambeth & Anor [2010] EWHC 2726 (QB) – Read judgment
The High Court has been asked to consider whether the rule which prevents public authorities from suing in libel – to allow uninhibited criticism of government institutions – has the effect of preventing libel actions being taken by individual managers and employees of those institutions.
This was a claim by the defendants to strike out a libel action on grounds of abuse of process.The claimants are respectively head teacher, director of educational development and chairman of the governors of a primary school in Lambeth. The school was maintained by the first defendant pursuant to its statutory obligations. Now it is an Academy it is maintained by central government.
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26 July 2016 by Charlotte Bellamy
Photo Credit: Steve Parsons/PA
In the News
In a new report on the much-delayed Counter-Extremism Bill, the Joint Committee on Human Rights (JCHR) has concluded that the proposed legislation is confusing, unnecessary, and likely to be counter-productive.
Though first announced by the Government in the Queen’s Speech in May 2015, the Bill itself has yet to appear. The JCHR report is a result of what was in effect a pre-legislative scrutiny inquiry into the Government’s proposals, due to the Committee’s concerns that it would be likely to raise significant human rights concerns, specifically where Articles 9 (freedom of religion), 10 (freedom of expression) and 11 (freedom of association) are concerned.
Five key problems which the report has identified are:
- No clear definition of extremism – The Counter-Extremism Strategy, launched in October 2015 (previously covered here) defines extremism as the “vocal or active opposition to our fundamental values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of those of different faiths and beliefs”. This is currently too vague to be workable as a legislative definition. There is neither a consensus on the meaning of “extremism” nor “British values”. The extent to which a lack of mutual respect and tolerance towards different faiths and beliefs will be unlawful is likely to be particularly contentious.
- Discrimination and religious freedom – The difficulty here is twofold. Measures which impact on those expressing religious conservatism would either operate indiscriminately against any religious conservatism which had no intention of inciting violence (including, for example, Islam, Orthodox Judaism, Evangelical Christianity), or would operate discriminately, specifically targeting Muslims and alienating the Muslim community.
- The “escalator” approach – In trying to tackle extremism by placing restrictions on religious conservatism, the Government has wrongly assumed that violent jihadism necessarily follows from religious conservatism. Yet there is no proof that the two are correlated. The focus should rather be on extremism which leads to violence. Placing restrictions on religious conservatism amounts to suppressing views with which the Government disagree.
- Conflicting duties on universities – Universities are under a duty to promote free speech under Section 202 of the Education Reform Act 1988, which provides that University Commissioners have a duty to ensure that academic staff have “freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.” It is unclear how “controversial or unpopular opinions” will be differentiated from “vocal or active opposition to our fundamental values”, and therefore what will count as extremism.
- The civil order regime – in the Queen’s speech in May 2016, a “new civil order regime” was mentioned, though with little detail. There is concern that ill-defined civil orders, breach of which would be a criminal offence, should not be used by the Government to avoid having to make a criminal case to a higher standard of proof, especially where a proper definition of the prohibited behaviour is lacking. It is likely that these orders may interfere with freedom of religion, expression and association.
The Committee concluded that the Government should not legislate, least of all in areas which impinge on human rights, unless there is a clear gap in the existing legal framework for terrorism and public order offences. In their view, the Government has not been able to demonstrate that such a gap exists, and there is a danger that any new legislation would be counter-productive.
Other news
- Turkey has told the Council of Europe that it wants to temporarily derogate from the human rights protections under the ECHR, due to the state of emergency in the country declared by President Erdogan last week. Emma Sinclair-Webb, Senior Turkey researcher at Human Rights Watch, writes that it is unclear whether the current situation meets the required “threat to the life of the nation” criterion for derogation, provided for under Article 15. Even if this criterion is met, derogation from certain Convention rights is not permitted, including the prohibition on torture and inhuman and degrading treatment (Article 3), the right to life (Article 2); prohibition on slavery (Article 4(1)). Though Turkey has pointed to France’s state of emergency powers (extended after the Nice attack) to justify its own derogation, a state of emergency imposed where there are clear signs that the government is ready to crack down more broadly is an “alarming prospect”. Amnesty International has gathered evidence that detainees in Turkey are being subjected to beatings, torture, including rape, in official and unofficial detention centres in the country. Amnesty calls on Turkish authorities to allow international monitors to visit these places of detention.
- A clause in the contracts of Deliveroo workers say that they are not allowed to take their grievances to an employment tribunal, and that if they do they must indemnify the company against all costs and expenses it incurs. Michael Newman, partner at Leigh Day, has said that the clause is likely to be unenforceable as they attempt to exclude or limit established employment rights, and imposed penalties. Deliveroo say that their contracts reflect the fact that riders are allowed to work flexibly on a freelance basis. Deliveroo joins several other companies in the spotlight for their use of self-employed workers, who do not receive the same rights as employees. A group of drivers are currently taking legal action against Uber, arguing that they should be entitled to the living wage, sick pay, and pensions. Uber is arguing that drivers are “partners”, not employees. It has also recently emerged that some workers for parcel firm Hermes have claimed that they earn as little as £5.50 an hour over some periods.
In the Courts
Foulon and Bouvet v France – Mr Didier Foulon and his daughter Emilie were the applicants in the first case. Mr Foulon is a French National and his daughter Emilie was born in Bombay, India. In the second case the applicants were Mr Philippe Bouvet, a French National, and his twin sons Adrien and Romain Bouvet, who were also born in Bombay. In both cases the applicants were unable to obtain recognition under French law of their biological affiliation. The French authorities were refusing to transcribe birth certificates issued in India, due to their use of Gestational Surrogacy Agreements (GPA) in India, which are unlawful in France. The Court de Cassation in both cases provided reasons for the refusal to transcribe the certificates, partly on the basis of fraude à la loi (evasion of the law) due to the conclusion of the unlawful GPA agreements. A violation of Article 8 was found (right to respect for private life) with respect to Emilie Foulon and Adrien and Romain Bouvet.
Shahanov and Palfreeman v Bulgaria – This case concerned the disciplinary punishments given to prisoners for complaining to the prison authorities about prison officers. Mr Nikolay Shahanov, a Bulgarian national, and Mr Jock Palfreeman, an Australian national, are serving a life sentence and a sentence of 20 years respectively in Bulgarian prisons. Mr Shahanov had made two written complaints to the Minster of Justice, in which he accused two prison officers of favouritism towards a prisoner because they were related. Mr Palfreeman had written to the governor of the prison alleging that unnamed prison officers were rude to two journalists who had visited him in prison and had stolen other visitors’ effects from lockers during their visit. Both were found guilty of making defamatory statements and false allegations about prison officers. Mr Shahanov was placed in solitary confinement for ten days and Mr Palfreeman was not allowed to receive food parcels for three months. A violation of Article 10 (freedom of expression) was found in respect of both applicants.
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7 November 2014 by David Hart KC
R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J read judgment
An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.
Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.
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25 November 2019 by Rosalind English
In the news
With an election on
the horizon, a coalition of 29 women and human rights organisation has published
a manifesto for women and girls. Their stated goals are to “end violence
against women and girls”; “secure women’s equal representation in politics”; “promote
equality in the workplace and in the home”; “invest in public services”; and “lift
women and children out of poverty”. To
achieve these goals, they propose measures including a new ‘Violence Against
Women and Girls’ bill to lay before Parliament; funding for high-quality sex
and relationships education; improvements to the criminal justice system
regarding allegations of rape and sexual assault; equal pay; increased maternity
pay and maternity allowances; an end to pregnancy discrimination; and a strengthening
of the law on sexual harassment at work, creating a duty on employers to
prevent harassment from occurring. The manifesto is available here.
The backlash
against internet intermediaries and ‘surveillance capitalism’ continues this
week. Amnesty International have released a report entitled ‘Surveillance Giants’,
which analyses in detail the human rights threats posed by Facebook, Google,
and other technology corporations. The report is available here. Meanwhile,
in the courts, Singh LJ granted Ed Bridges permission to appeal the facial
recognition judicial review which he lost in September, noting that Mr Bridges’
appeal had a reasonable prospect of success.
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30 November 2015 by Guest Contributor
“I find your lack of faith disturbing” (Darth Vader)
Digital Cinema Media (DCM), the media agency that supplies adverts to 80% of UK cinemas caused consternation last week when it announced its refusal to show a 60-second advert by the Church of England encouraging people to pray. The ad would have been guaranteed a sizable audience had it been permitted to air as planned before the upcoming Star Wars: the Force Awakens, advance ticket sales for which have broken all known records.
DCM said the decision was based on concerns that the ad risked upsetting or offending audiences and ran contrary to their policy not to show ads that in “the reasonable opinion of DCM constitute Political or Religious Advertising.”
David Cameron, Richard Dawkins, Carrie Fisher and Stephen Fry were among the chorus of voices to lambast the decision. Jim Shannon, Democratic Unionist MP put down an early day motion for debate in the House of Commons urging for “the ban be reconsidered and overturned”. The motion is currently supported by the signatures of 14 MPs.
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11 September 2021 by Rafe Jennings
This post is the second part of two posts on the draft Online Safety Bill. In my first post, here, I detailed the mechanics of the proposed bill in detail. This post will summarise some of the civil society responses since the publication of the draft bill, attempting an evaluation of how reasonable those responses are in light of the available information.
Does the bill go too far?
A recent report on freedom of expression online from the House of Lords, ‘Free for All? Freedom of Expression in the Digital Age’ (found here), recommends that the draft bill drops the duty to protect adults from contentious “legal but harmful” content. As detailed in the previous post, “category 1” services would have a duty under the draft bill to identify how their systems could cause adults to come into contact with user-generated content that is legal but nonetheless considered harmful. Further to that duty, they would be required to take steps to proportionately mitigate against the risk of exposure to that harmful content. Given the possibility to adverse impacts on freedom of expression, especially from the potential of overzealous policing of this provision by category 1 services to avoid liability, this has become one of the most controversial elements of the current draft bill.
The House of Lords report recommends that s. 11, implementing the adult safety duty, be dropped from the draft bill. As things stand, there are two ways in which content can be caught by the adult safety duty. Under s.46(2), the relevant secretary of state can designate by regulation certain types of content as “priority content”. Second, under s.46(3 – 5), content for which there is a “material risk” of having “significant adverse physical or psychological impact on an adult of ordinary sensibilities” is also considered “content that is harmful to adults”. Category 1 services must take steps to proportionately mitigate against the likelihood of adults using their service to come into contact with these types of content.
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26 April 2010 by Adam Wagner
The UK Supreme Court Blog has posted on United States v Stevens, a US Supreme Court decision on animal cruelty videos, involving “freedom of expression in the extreme”. The decision provides for an interesting comparison with the approach to freedom of expression in the UK courts.
If the Human Rights Act 1998 is replaced by a Bill of Rights, the Bill’s drafters are likely to look at other legal systems in order to see how best to recalibrate the balance of the various protections. The drafters of the European Convention on Human Rights themselves had the US Bill of Rights, which has been in force since 1791, as inspiration.
Similar but different
Arguably, the US Bill of Rights places a stronger emphasis on freedom of expression than our domestic law. Freedom of expression under Article 10 of the European Convention is subject to a number of qualifications. There is a long list, including the interests of national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the reputation or rights of others.
Section 12 of the Human Rights Act 1998 shifts the balance slightly, by stating that a court must pay “particular regard” to cases involving the public interest in disclosure of material which has journalistic, literary or artistic merit.
By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not
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20 July 2013 by Rosalind English
SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment
This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.
This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.
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