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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/25/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The claimant (FoE) applied for judicial review of the decision by the Secretary of State to provide export finance and support in relation to a liquified natural gas project in Mozambique.
The mission of the International Trade/Export Credits Guarantee Department (UKEF) is to ensure that no viable UK export fails for lack of finance or insurance from the private sector, while operating at no net cost to the taxpayer. It is afforded a significant margin of appreciation when considering factors when deciding whether to provide this finance and support. Indeed it has been the first UK Government Department to assess climate change impacts in the context of a long-term foreign project with many public interest considerations.
Background facts
The project comprised the development of offshore deepwater gas production facilities connected to an onshore gas receiving and liquefaction facility. It was to be operated by the first interested party (Total Mozambique) and funded via the second interested party (a financing company). UKEF acknowledged that climate change impacts and the Paris Climate Change Agreement were factors that ought to be taken into account alongside other factors in making its decision in relation to the project. A report was prepared summarising the climate change matters considered by UKEF, including that the potential Scope 3 greenhouse gas emissions from the use of the project’s exported liquid natural gas would be very high, and that it was unlikely that Mozambique would attract significant international investment into the renewables sector without first being in receipt of financial resources from investment into sectors such as natural gas.
The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.
Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life.
While that sounds really nice, you might be wondering what exactly falls under biotechnology?
What is Biotechnology?
Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry.
Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.
Not only is God dead, says Israeli professor Yuval Noah Harari, but humanism is on its way out, along with its paraphernalia of human rights instruments and lawyers for their implementation and enforcement. Whilst they and we argue about equality, racism, feminism, discrimination and all the other shibboleths of the humanist era, silicon-based algorithms are quietly taking over the world.
His new book, Homo Deus, is the sequel to Homo Sapiens, reviewed on the UKHRB last year. Sapiens was “a brief history of mankind”, encompassing some seventy thousand years. Homo Deus the future of humankind and whether we are going to survive in our present form, not even for another a thousand years, but for a mere 200 years, given the rise of huge new forces of technology, of data, and of the potential of permissive rather than merely preventative medicine.
We are suddenly showing unprecedented interest in the fate of so-called lower life forms, perhaps because we are about to become one.
Harari’s message in Sapiens was that the success of the human animal rests on one phenomenon: our ability to create fictions, spread them about, believe in them, and then cooperate on an unprecedented scale. These fictions include not only gods, but other ideas we think fundamental to life, such as money, human rights, states and institutions. In Homo Deus he investigates what happens when these mythologies meet the god-like technologies we have created in modern times.
In particular, he scrutinises the rise and current hold of humanism, which he regards as no more secure than the religions it replaced. Humanism is based on the notion of individuality and the fundamental tenet that each and everybody’s feelings and experiences are of equal value, by virtue of being human. Humanism cannot continue as a credible thesis if the concept of individuality is constantly undermined by scientific discoveries, such as the split brain, and pre-conscious brain activity that shows that decisions are not made as a result of conscious will (see the sections on Gazzaniga’s and Kahneman’s experiments in Chapter 8 “The Time Bomb in the Laboratory”).
…once biologists concluded that organisms are algorithms, they dismantled the wall between the organic and inorganic, turned the computer revolution from a purely mechanical affair into a biological cataclysm, and shifted authority from individual networks to networked algorithms.
… The individual will not be crushed by Big Brother; it will disintegrate from within. Today corporations and governments pay homage to my individuality, and promise to provide medicine, education and entertainment customised to my unique needs and wishes. But in order to do so, corporations and governments first need to break me up into biochemical subsystems, monitor these subsystems with ubiquitous sensors and decipher their working with powerful algorithms. In the process, the individual will transpire to be nothing but a religious fantasy.
Laura Profumo runs through the week’s human rights headlines.
In the News:
The Conservative party published its manifesto last week. The document makes for curious reading, writes academic Mark Elliott. The manifesto confirms the party’s pledge to scrap the Human Rights Act and to replace it with a British Bill of Rights, reversing the “mission creep” of current human rights law.
Yet the polarising references to “Labour’s Human rights Act” illustrate the Act’s failure to secure supra-political constitutional status, being tossed between the parties like a “political football”, writes Elliott.
I am delighted to announce the launch of my new human rights initiative, RightsInfo. The site has just gone live at www.rightsinfo.org. Visit, share, subscribe by email and enjoy!
RightsInfo will use social media to improve public understanding of human rights. Our brilliant new website provides clear, reliable and beautiful human rights information to share.
I have been working closely with a large team of volunteers and the amazing Information is Beautiful Studios to build a space which looks and feels like nothing that has come before it. Here are some of RightsInfo’s great features:
Human Rights Stories: We are translating hundreds of major human rights cases into plain-English short stories. Four of these will be available on launch and then one will be published each weekday;
South Africa’s Protection of Information Bill is about to be transformed into a new secrecy law as it was pushed through parliament yesterday, Jan Raath reports in the Times. See our previous post on the details of the law’s scope and potential chilling effect on investigative journalism and whistleblowers.
In essence, if this bill becomes law it would allow any organ of state, from the largest government department down to the smallest municipality, to classify any document as secret and set out harsh penalties of up to 25 years in jail for whistleblowers.
Raath quotes Siyabonga Cwele, the Security Minister, as declaring last week that South Africa had been under
an increased threat of espionage since 1994 when it adopted a non-racial democratic Constitution. He denounced opponents of the Bill as “proxies of foreign spies”. Continue reading →
R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party) [2012] EWHC 147 (Admin) – read judgment.
In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings. The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.
He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR. Continue reading →
The appointment of Ken Clarke as the new Justice Secretary may have saved the Human Rights Act 1998 from repeal. The Conservative plans for the Act to be replaced with a Bill of Rights may be scrapped in any case under the full terms of their agreement with the Liberal Democrats. In the mean time, supporters of the Act will be encouraged by supportive statements by the new Justice Secretary.
The policy agreement between the two parties has now been published, and the Human Rights Act is notable by its absence under section 10, entitled “Civil Liberties”, which promises to “reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion“. What the agreement does promise, amongst other things, is the scrapping of the ID card scheme and the Contact Point Database, extending the scope of the Freedom of Information Act and protecting the right to trial by jury. There will also be a “Great Repeal” or “Freedom” bill.
No withdrawal from the European Convention
Whilst the Human Rights Act is not mentioned in the document, its supporters will take heart at the new Justice Secretary Ken Clarke’s comments on today’s BBC The World At One. He said ”We are not committed to leaving the European Convention on Human Rights, we have committed ourselves to a British Human Rights Act. We are still signatories to the European Convention on Human Rights”. He continued that he has “also got to see when the coalition agreement is completed how high a priority this is going to be given.”
Whilst he may have hedged his answer, Mr Clarke gave an even clearer indication of his views in 2006, when David Cameron first announced his plans to repeal the Human Rights Act. He said that “I think he’s going to have a separate task force on the Bill of Rights, isn’t he? He’s going out there to try to find some lawyers that agree with him, which I think will be a struggle myself.” Even more strikingly, he went on to describe the presentation of the Act as a foreign invention to be “anti-foreigner” and that “I think the Convention of Human Rights was written by a Conservative lawyer after the war. It was a British document“.
Ken Clarke, well known within his party as a fan of European integration, is to be the new Lord Chancellor and Secretary of State for Justice. Like his predecessor Jack Straw, he started out as a barrister and became a QC in 1980 whilst he was already part of the Thatcher Government. His views will be key in shaping the new Government’s policies towards civil liberties.
Safety for the 1998 Act?
The coalition partners have opposing policies towards the Human Rights Act, and the policy agreement suggests that these remain. In their manifesto, the Conservative Party pledged to repeal the Human Rights Act, a key early New Labour reform, and replace it with a Bill of Rights. The form and content of the Bill has remained deliberately vague. By contrast, the Liberal manifesto promised to “ensure that everyone has the same protections under the law by protecting the Human Rights Act.”
Of course, Mr Clarke’s 2006 comments do not necessarily reflect his views now, and his word will not be final when it comes to policy. Further, it is notable that the Act’s repeal, a well publicised plank of the Conservative Party manifesto, has been left out of the draft policy agreement. Given that the civil liberties section is fairly detailed, this is probably deliberate. It may be that a Bill of Rights in some form is still on the policy agenda, perhaps to work in tandem with, rather than as a replacement to, the Human Rights Act.
It is also notable that the Liberal Democrats’ longstanding policy to introduce a written constitution, which some commentators argue would be the best way of enshrining and protecting the Human Rights Act in future, is also absent from the policy agreement.
However, on balance it seems likely that the new Justice Secretary’s pro-European outlook and past comments, an addition to the Liberal Democrats’ manifesto commitment to protect the Human Rights Act, puts the Human Rights Act in a far stronger position than it would have been in the face of Conservative majority parliament.
The Federal Court of Justice in Germany (the Bundesgerichtshof, or BGH) has ruled against the social network provider that deleted posts and suspended accounts amid allegations of “hate speech”.
The ruling was handed down on the 29th of July (Bundesgerichtshof, Urteile vom 29. Juli 2021 – III ZR 179/20 und III ZR 192/20) and at the time of writing this post, the full judgment had not been published. The following summary is based upon the Bundesgerichtshof’s press release. NB the quotes from the plaintiff’s Facebook entries are in the judgment, i.e. the public domain, in other words no offence is intended by repeating them here.
Judgments of July 29, 2021 – III ZR 179/20 and III ZR 192/20
The III Civil Senate of the German Federal Court of Justice has ruled that Facebook’s terms and conditions of April 19, 2018 for the deletion of user posts and account blocking in the event of violations of the communication standards set out in the terms and conditions are invalid. This was because the defendant provider had not undertaken to inform the user about the removal of his post at least subsequently and about an intended blocking of his user account in advance, had not informed them of the reason for this and had not given them an opportunity to respond with a subsequent new decision. If, due to the invalid terms and conditions of the provider’s contract, a user’s contribution was deleted and their account temporarily subject to a partial blocking, the user should be able to claim the activation of the deleted contribution and, an undertaking that there would be no further account blocking or deletion of the contribution upon its renewed posting.
Background facts
The parties disputed the legality of a temporary partial blocking of the plaintiffs’ Facebook user accounts and the deletion of their comments by the defendant.
The plaintiffs each maintained a user account for a worldwide social network operated by the defendant’s parent company, whose provider and contractual partner for users based in Germany was the defendant. They claimed against the defendant – to the extent still relevant for the appeal proceedings – in respect of activation of the posts published by them on the network and deleted by the defendant, for an injunction against renewed blocking of their user accounts and deletion of their posts, and – in one of the appeal proceedings – for information about a company commissioned to implement the account blocking.
The Prime Minister has courted controversy yet again this week with a new Brexit bill that appears to violate international law. The proposed Internal Markets Bill would give ministers certain powers relating to Northern Ireland in respect of customs rules and state aid. In particular, it would give them powers to modify or “disapply” rules relating to the movement of goods which will come into force from 1st January 2021, if the UK and EU are not able to agree a trade deal. These were key issues under the Northern Ireland Protocol that was negotiated as part of the Withdrawal Agreement concluded on 31 January this year. In a striking admission, Northern Ireland Minister Brandon Lewis stated in Parliament that this breach of the Withdrawal Agreement does indeed breach international law, but only “in a very specific and limited way”. The bill is to be formally debated by MPs today.
In a further move to avoid the UK’s international law obligations, the Government has indicated that it is planning to “opt out” of parts of the European Court of Human Rights. This proposal is apparently made in order to enable the Government to accelerate deportation of asylum-seekers, and to minimise legal action against British forces overseas, which the Government identifies as key areas where the judges of the European Court have “overreached”. The proposals have provoked outrage from Labour and the Liberal Democrats.
The Joint Committee on Human Rights’ inquiry into racism and human rights in the UK heard evidence this week from ClearView Research. The evidence provided from surveys indicates that black people in the UK overwhelmingly do not think they receive equal human rights protection. According to the data, 75% of black people in the UK do not believe their rights are equally protected compared to white people; 85% are not confident they would be treated the same as a white person by the police; and 60% do not believe their health is equally protected by the NHS compared to white people.
The British Institute of Human Rights has released a report which raises new concerns about the operation of the care sector during the pandemic. The report states that more than 75% of social care staff were not given proper training to deal with the impact of COVID-19, in particular in relation to human rights law and coronavirus emergency powers – despite the wide-ranging changes made by the government to the legal framework which governs the care sector, including suspending duties under the Care Act, changing vulnerable individuals’ care packages, and banning non-essential visits to care homes. The report also noted that more than 60% of vulnerable individuals with care and support needs were not informed of the legal basis of the drastic changes made to their care packages.
As the school year gets going again, grammar schools will need to be cautious in complying with their duty to make reasonable adjustments, following a legal challenge funded by the Equality and Human Rights Commission. The challenge was brought by a visually impaired student who was unable to sit an 11+ entry exam for a Berkshire grammar school when the school refused to make adjustments specified in his Education Health and Care Plan, on the basis that they were too expensive; the First-tier Tribunal found for the student.
In the courts
With the UK courts in recess, there are very few reported judgments this week. However, there are some noteworthy judgments from the European Court of Human Rights:
GL v Italy: a child diagnosed with nonverbal autism was entitled to specialised assistance under Italian law. The local authorities did not provide this for 2 years, while she was in primary school, on the basis of lack of resources. The ECtHR found that there had been a violation of Article 14 read with Article 2 of Protocol 1 (right to education). In particular, the court noted that the Italian courts had failed to consider whether there was a fair balance between the child’s educational needs and the authorities’ capacity, and did not verify how the effect of budgetary restrictions compared for non-disabled and disabled children. The court further observed that the national authorities had not considered the possibility that they could address their lack of resources by reducing their educational offer accordingly, such that it could be distributed equitably between non-disabled and disabled students. In giving judgment, the court emphasised that budgetary restrictions must impact the education available for disabled and non-disabled pupils the same way; and that discrimination of this kind is all the more serious when taking place in compulsory primary education.
NS v Croatia: the applicant’s daughter and partner had died in a tragic car accident, but their daughter survived. In the aftermath of the accident, there was a custody battle between the applicant and the child’s uncle; following confidential court proceedings, the uncle was given custody. The applicant subsequently appeared on a national TV show, where she discussed the proceedings, and expressed criticism of the Croatian child protection system on a TV show; she was convicted of a criminal offence for breach of confidentiality in respect of the court proceedings. The court held that there had been a violation of Article 10. The domestic courts should have considered the fact that most of the information disclosed in the TV report was already known to the public, and that the applicant had been appearing on TV in good faith to raise serious concerns about the malfunctioning of the country’s social welfare services.
Yordanovi v Bulgaria: two Turkish-Muslim brothers decided to set up an association for the integration of Turkish-speaking Bulgarians. In pursuit of this aim, they built a monument on private land to commemorate soldiers killed in the 19th Century Russo-Turkish War, and set up the ‘Muslim Democratic Union’ at an assembly in the centre of town. Police told them the assembly was illegal, but it went ahead; criminal proceedings were subsequently brought for setting up a political organisation on a religious basis, and for breach of the peace in setting up the monument. The brothers were given a suspended prison sentence. The court held that this was a violation of Article 11. The authorities had many other options: they could refuse to register the would-be political party, without which registration the party would not be able to engage in any official activity; and they could have dissolved the party if it were declared unconstitutional by the Constitutional Court. A criminal sanction had been a disproportionate interference with freedom of expression and freedom of association, and was not ‘necessary in a democratic society’.
Timakov and Ooo Id Rubezh v Russia: the applicant and his newspaper had published an article making allegations of corruption against the Governor of the Tula region in Russia. The Governor brought civil and criminal proceedings, and substantial damages awards were made – sufficiently substantial that some of the applicant’s household items were taken to fulfil them. The Governor was ultimately found guilty of bribery and corruption and sent to prison. The court found that there was a violation of Article 10. In reaching this conclusion, the court noted a laundry list of failings in the Russian courts: the courts had not sought to balance the governor’s interest in protecting his reputation against the importance of public transparency and accountability; the courts had not considered the applicant’s role as a journalist, that these were matters of public concern, or that he had acted in good faith; the courts had not attempted to consider whether the statements complained of were statements of fact or value judgements. The court further emphasised the chilling effect of such disproportionately high awards, with the awards from the civil proceedings having been substantially higher than the fine in the criminal proceedings.
BG and others v France: Eastern European asylum-seekers with young children were accommodated by the French authorities in a set of tents in a parking lot, for a period of approximately 3 months. They alleged that there had been a violation of Article 3 and 8, insofar as they had not benefited from the material and financial support provided for under national law. The court rejected their claim, noting that the applicants had received constant food aid; medical monitoring, vaccination, and education had been provided for their young children; and their asylum application had been examined under an accelerated process.
Shuriyya Zeylanov v Azerbaijan: this case highlights serious failings in the Nakhchivan Autonomous Republic of Azerbaijan. The applicant’s son had been charged with treason, having been accused of collaboration with Iranian intelligence forces, and died in custody from an alleged pulmonary embolism. The applicant claimed that the government had violated Articles 2 and 3. The court upheld his claim, under both the substantive and the procedural limbs. The government had failed to convincingly account for the circumstances of the victim’s death, and it appeared likely that injuries visible on video footage of his body had been occasioned by torture. Likewise, the government had failed analyse the causal links between his injuries and his death, or to cooperate with the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment; and it appeared that the government had attempted to prevent an effective investigation into the matter, by levelling accusations of defamation against the deceased’s family.
On the UKHRB
Sapan Maini-Thompson discusses a High Court challenge to conditions at Brook House Immigration Removal Centre
Philippa Collins considers the implications of the new pattern of home working for privacy rights under the European Convention of Human Rights
Elliot Gold examines a judgment of the European Court of Human Rights on Article 3 ECHR in the context of a rape investigation
On 1 January 2012, the EU Emissions Trading Scheme started applying to airlines for real. So it was perhaps no coincidence that just before Christmas, and rather more speedily than usual, the EU Court (the CJEU) effectively threw out a challenge by US airlines to the scheme brought in the UK Courts which was referred to the CJEU. The airlines had said that a raft of international rules and conventions were inconsistent with the scheme. The UK denied the unlawfulness; it said, if you want to land in the EU, you have to obey EU rules. I posted on the Advocate-General’s opinion, and the Court has come to the same conclusion albeit by a slightly different route. But, first, what are these emissions trading schemes about?
Updated | Today the UK courts have made two decisions in relation to radical Muslim clerics. The score card reads: Abu Hamza can keep his passport and stay (for now), but Dr Zakir Naik, an Indian preacher who was excluded from the UK by the Home Secretary in June, will remain unwelcome.
The Special Immigration Appeals Commission has ruled that Abu Hamza can keep his UK passport as if a deprivation order were made, he would be made stateless, as he claimed he had already been stripped of his Egyptian citizenship. By section 40 of the British Nationality Act 1981, the Secretary of State cannot make a person stateless. The UK is trying to deport him altogether, but his claim is being heard at the European Court of Human Rights (see our post).
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 (On appeal from the Court of Appeal [2009] EWCA Civ 649) Read judgment
The Supreme Court has ruled that ante-nuptial arrangements should be binding and enforceable in ancillary proceedings. Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
Although human rights were not in issue in this litigation, there is an interesting question to explore here in relation to the parties’ rights to peaceful enjoyment of their possession without interference by the state (in the form of a court order reversing the provisions of a private settlement). Now the Supreme Court has given nuptial agreements considerably more weight in the fall-out folllowing marital breakup the likelihood of a Convention-based challenge in this context falls away but does not disappear altogether because the statutory regime still obliges courts to interfere with agreements if they are considered unfair in any way, or prejudicial to the children of the marriage.
First, the following summary is based on the press release of the case published on the Supreme Court website.
From 26 December new Covid rules came into effect in Scotland, Northern Ireland and Wales. All three nations have limited the size of public events and face coverings are compulsory in most indoor public spaces. Covid passports or proof of a negative test result is required at many venues. Nightclubs will close in Wales and Scotland from 27 December and in Northern Ireland from 26 December. People in Scotland are also advised to limit social contact to two other households and in Wales social distancing of 2 metres is required in all public and work spaces.
The only change to the current Covid guidance for England is the reduction of Covid self-isolation time from 10 to seven days, provided people have two negative test results. Face masks remain compulsory in most indoor public venues and a Covid passport or negative test result is required for nightclubs and some other venues.
In its judgment of 25 May 2021 the Grand Chamber of the European Court of Human Rights found that certain aspects of the UK’s regime governing bulk interception of communications were contrary to Articles 8 and 10 of the Convention.
The case concerned three different interception regimes: bulk interception of communications; the receipt of intercepted material from foreign governments and intelligence agencies; and the obtaining of communications data from communication service providers (“CSPs”). The three applications were introduced by individuals, journalists and human rights organisations following Edward Snowden’s revelations about surveillance programmes operated by the intelligence services of the USA and the UK.
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