UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
Judgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian) EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn box 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. Links compiled by Adam Wagner, post by Daniel Isenberg.
Not our own proposed “Snooper’s Charter” getting the civil liberties groups excited this week, but the all-sensing eyes and ears of the American government. Meanwhile, Europe publishes a useful handbook on asylum and immigration issues; whilst the Strasbourg Court cuts down its growing backlog of cases.
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.
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.
A NHS Foundation Trust v Ms X (By her litigation friend, the Official Solicitor), 8 October 2014  EWCOP 35 – read judgment
The issues that arose before the Court of Protection in this case encapsulate the difficulties involved in applying legal tools to the organic swamp of human pathology. Everything that one may envisage, for example, in planning a “living will” (or, more precisely, an Advance Decision under the Mental Capacity Act), may have no application at the critical time because the human body – or rather the way it falls apart – does not fit in to neat legal categories. In such a situation it is often the right to autonomy that is most at risk, since what you plan for your own medical and physiological future may not square with what the authorities you decide you were capable of planning. Cobb J’s sensitive and humane judgement in this sad case is a very encouraging sign that courts are beginning to resist the tyrannous claims of Article 2 and the obligation to preserve life at all costs.
Factual and legal background
Ms X, a young woman who lives alone in a private rented bed-sit, has suffered from anorexia nervosa for the last 14 years. She also suffers an alcohol dependence syndrome which has caused chronic and, by the time of this hearing, “end-stage” and irreversible liver disease, cirrhosis; this followed many years of abuse of alcohol. The combination of anorexia nervosa and alcohol dependence syndrome is unusual, and has always been medically acutely difficult to manage. This is a vicious cycle of self destructiveness and treatment, and as Cobb J observed,
The causes of her distress are multi-factorial but include the treatment for her anorexia itself and the removal of her personal autonomy when treated
So damaging had been the previous admissions for compulsory feeding, her doctors regarded it as “clinically inappropriate, counter-productive and increasingly unethical” to cause her to be readmitted; their experience revealed that on each recent admission, she had been more and more unwell (as a result of her anxiety to reverse the weight gained in hospital during the previous visit, combined with renewed alcohol abuse). In fact Ms X had been on an ‘end of life pathway’ twice in recent months and it was said that her physical condition “is now so fragile that her life is in imminent danger.” Continue reading →
As invidual consumers we are constantly exhorted to separate the goods and substances we want to get rid of into “rubbish” destined for landfill or items for recycling. Clearly we have to pay attention to this to avoid material going into landfill that could be recycled or turned into energy, but not only that; we need to be aware of the cost of goods being manufactured that never see the light of day at all, because by virtue of being mixed by less pristine goods, they count as waste, with all the consequences that entails.
The case should raise alarm bells. When we return an item against a refund of the purchase price we do not think we are discarding it. The CJEU ruling turned on the application of Article 3(1) of the Waste Directive 2008/98/EC, which provides that
‘“waste” means any substance or object which the holder discards or intends or is required to discard’.
Individual consumers are clearly not liable under waste legislation for returning goods. But the concept of waste forms the basis of a criminal penalty for possession in EU member states. So once those items reach the retailer the situation changes, because it may or may not become “waste” in their hands.
National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012)  ZASCA 168 (27 November 2013) – read judgment.
In what appears to be the first case where the Supreme Court of Appeal (SCA) has had to consider the investigation of crimes committed extraterritorially, the Court has made it clear that the perpetrators of systematic torture – as was alleged in this case – can be held accountable in South Africa regardless of where the offending acts took place.
It had been alleged that Zimbabwean officials had on a widespread scale tortured opponents of the ruling party. The Gauteng high court had ordered the SAPS to initiate an investigation under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) into the alleged offences (see my previous post on that ruling). Continue reading →
Welcome back to the UK Human Rights Roundup, your regular Easter egg hunt of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
Chris Grayling is on the offensive again over Judicial Review, the Home Secretary has faced a defeat over her decision to maintain a freeze on the money given to destitute asylum seekers, while in other news, the Strasbourg court rejects a challenge to a UK ban on secondary industrial action and the long-running Al-Sweady Inquiry has concluded hearing oral evidence.
R (o.t.a. Dowley) v. Secretary of State for Communities and Local Government  EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment
This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.
The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.
The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.
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.
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“).
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 →
Welcome back to the UK Human Rights Roundup, your weekly bulletin 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.
This week saw the Queen’s Speech set out a number of legislative reforms, the veto of the release of the NHS risk register and the latest instalment in the Abu Qatada saga after the European Court of Human Rights declared his appeal was within time but nonetheless declined to hear it.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.