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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/27/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
It took until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. In light of the dangers posed by climate change, is it time to go one step further and grant rights to the Earth herself?
Bolivia has done just that – the Mother Earth Rights Law (Ley 071(21 December 2010)) has now come into force. Congratulations to everyone involved in drafting and promoting this law. With Evo Morales’ Party (the Movement Towards Socialism) having a majority in Congress and the Senate, this law passed without much opposition. It is a wonderful legal milestone, which I have been advocating for a number of years as the only way to balance the rights that humans have with the protection of the Planet and ultimately the human race.
Deb and Graham characterise my argument as follows: “the right to life under Article 2 is absolute and allows no exception; there is a negative obligation upon the UK not to take life; any euthanasia laws would necessarily involve the taking of life; therefore euthanasia laws would breach Article 2.” They then point out that this argument has been rejected in Mortier v Belgium.
The problem is that this completely mischaracterises my argument and as result Deb and Graham dedicate several paragraphs to attacking a strawman. My argument was much narrower than they claim. As I explained in my blog post the “negative obligation prohibits the State from conducting euthanasia and assisted suicide itself, even as part of a well-regulated scheme with appropriate safeguards. This means that, under the Convention, States may allow/tolerate private parties from conducting euthanasia/assisted suicide with appropriate safeguards but the State itself cannot conduct them.” (emphasis added)
Sims v Dacorum Borough Council [2014] UKSC 63 – read judgment 12 November 2014 and
R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 – read judgment 12 November 2014
A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.
The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.
The European Court of Human Rights has ruled that Swiss guidelines for doctors prescribing lethal drugs were too unclear and therefore breached article 8 ECHR, the right to private and family life. Ms Gross sought a prescription for a lethal drug to end her own life. She has no critical illness, but is elderly and feels that her quality of life is so low that she would like to commit suicide. The Swiss medical authorities refused to provide her with the prescription.
Assisted dying and the right to die have been firmly back in the spotlight this week, with the cases of Lamb and “Martin” going to the English and Wales Court of Appeal. Mr Lamb is taking up the point made by Tony Nicklinson in the High Court, before his death, that doctors should have a defence of necessity to murder charges in cases of assisted suicide. Mr Nicklinson’s widow, Jane, is continuing his fight too. The cases also challenge the current guidelines on when prosecution should be brought for assisting suicide. You can read more about the background to the right to die caselaw here.
In Lord Tennyson’s Arthurian ballad ‘The Lady of Shalott’, the eponymous heroine is stranded in her island castle. Continually weaving a web in her loom of the reflections of the outside world she sees in her mirror, she knows she will be cursed if she stops and looks out to nearby Camelot. But one day, Sir Lancelot rides by her castle and she abandons her loom and looks outside. Her mirror cracks “from side to side” and she is cursed. She leaves her castle and floats down to Camelot in a boat, dying before she reaches it.
Victorian poetry scholar Erik Gray analyses the Lady of Shalott as Tennyson’s exploration of the role of an artist: knowing what is better (staying inside and looking at reflections of the real world) and choosing to do what is worse (going outside into the real world). Just as the Lady of Shalott’s mirror cracked, the Supreme Court in Dalton’s application for judicial review marked possibly one of the largest cracks yet in the mirror principle: that the rights provided under the Human Rights Act 1998 (HRA) should mirror those under the ECHR. But this analogy with the Lady of Shalott raises two important questions: was the jurisprudence flowing from the mirror principle better and is the turn away from it worse?
At the outset, I acknowledge my involvement in the Dalton litigation. This post is not an exploration of that litigation. Instead, I look at the possible impact of the Supreme Court’s judgment on the mirror principle and what it may tell us more broadly about the HRA.
DPP v M [2020] EWHC 3422 (Admin) (15 December 2020) — judgment here
On 15 December 2020, the High Court ruled that a positive conclusive grounds decisions by the Single Competent Authority (“SCA”) that a defendant was a victim of trafficking and modern slavery was admissible evidence in a criminal trial where the defendant raises the defence in s.45 Modern Slavery Act 2015 (“MSA 2015”) that the act took place by reason of slavery or exploitation.
BACKGROUND
M was a 15-year-old boy with no history of offending. On 16 May 2019, he was at a KFC in Tooting, an area of London to which he had he had no connection, along with two other boys (MP and KM) who were known by police to be gang members and habitual knife carriers. When the group were searched by police officers, M had 5 wraps of cocaine, 2 wraps of diamorphine (heroin) and a hunting knife in his possession.
On 23 May 2019, M was referred to the National Referral Mechanism (“NRM”) by Lewisham Children’s Social Care. On 21 August 2019 the Single Competent Authority (“SCA”) made a positive conclusive grounds decision that, on a balance of probabilities, M had been recruited, harboured and transported for the purposes of criminal exploitation.
In Evans v Care Quality Commission [2025] EWCA Civ 1556, the Court of Appeal (Lord Justice Lewis) refused to grant permission to appeal against the High Court’s dismissal of a judicial review challenging two decisions by the Care Quality Commission (“CQC”). The Appellants, Ms Evans and a mother who wished to remain anonymous, contested (1) the CQC’s January 2024 decision to register Gender Plus Healthcare Ltd (“GPH”) pursuant to section 12 of the Health and Social Care Act 2008 (“the 2008 Act”), and (2) the December 2024 review of GPH’s services under section 46 of the same Act.
The case has attracted substantial public interest, engaging broader debates over the regulation of cross-sex hormone treatment for minors. The widely-reported Cass Review, led by the British paediatrician Hilary Cass, together with concerns over the prevalence of ideological influences in this medical field, were raised.
Background
In the High Court, acknowledging the “strongly held views about this treatment”, Mrs Justice Eady observed (R (OAO Evans and another) v Care Quality Commission [2025] EWHC 2015 (Admin) at [2]):
“The hormone treatment in issue involves the prescription of masculinising or feminising hormones (oestrogen; testosterone), introducing irreversible changes to the patient’s body. There are strongly held views about this treatment and an expert panel is due to report to the Secretary of State for Health and Social Care on its use for those under 18. At present, however, the treatment provided by [GPH] to 16 and 17 year olds is permitted by law, and the issue I am required to determine is not whether that is correct, but whether specific decisions made by the CQC are irrational and/or unlawful.”
Despite agreeing with the Claimants (at [97]), who contended a higher standard of review applies to the irrationality challenge in this case since “hormone treatment is often sought by vulnerable and emotionally distressed individuals” and “can have significant, irreversible, long-term physical and psychological consequences,” the claim was dismissed at first instance.
On the face of it, the issue decided by the Tribunal (General Regulatory Chamber, Charity) on 6 July 2023 was a narrow one: whether Mermaids was entitled to challenge the Charity Commission’s decision to register the LGB Alliance as a charity. But its ruling – that Mermaids could not – was highly significant as a robust affirmation of the value of debate in a democratic society.
Dr Hilary Cass, Chair of the Independent Review of gender identity services for children and young people, submitted her final report last Wednesday to NHS England. The Cass Review was commissioned in 2020 to look into the effectiveness of the gender care services provided to young people by the NHS. The report stressed that gender-affirming care is an extremely poorly researched area, and that the “toxicity” of the conversation surrounding transgender identity was severely hampering competent medical care for trans youth. Further research studies commissioned by the review were “thwarted” by the lack of cooperation from NHS gender care services, and the little evidence already available was insufficient to suggest that, in their current state, NHS gender services are producing positive outcomes. The report has made a total of 32 recommendations to the NHS – notably, Cass argues for a more holistic approach to gender care for children, factoring in support for mental health and neurodiversity. Taking a non-partisan stance, Cass noted in her report that ‘for some, the best outcome will be transition, whereas others may resolve their distress in other ways. Some may transition and then de/retransition and/or experience regret. The NHS needs to care for all those seeking support.’ The report follows news last month that puberty blockers will no longer be a routinely available treatment option on the NHS for children with gender dysphoria.
The Government announced last week that they will be closing another 150 asylum hotels by the beginning of May, following the closure of 50 in January and a further 50 by March. Home Secretary James Cleverly stated that the process will ‘keep going until the last hotel is closed’. Concerns have been raised regarding the impact that the asylum hotel closures may have on housing services for local councils – Chair of the Local Government Association, Shaun Davies, has suggested that ‘councils are becoming increasingly concerned over the numbers of asylum seekers presenting as homeless, which is likely to dramatically increase when Home Office accommodation is withdrawn.’ Charity Refugee Council published a report last week revealing that official Government statistics show a 239% increase in the number of households requiring homelessness support from local authorities following eviction from Home Office asylum support accommodation. The Government statement from last week ends: ‘Ultimately, the best way to save money is by deterring people from coming to the UK illegally in the first place, and our partnership with Rwanda intends to do just that’.
The European Parliament voted to pass a new pact on migration and asylum last Thursday. The new laws brought in through the pact have been ten years in the making and are intended to provide a ‘robust legislative framework’ that ‘puts humanity first’. The pact, comprised of a series of 5 closely related laws, was passed by a narrow margin – the laws received an average of 300 votes for to 270 against. The laws cover a variety of issues including biometric data collection, detention regulations, and national security. The pact establishes a system of ‘mandatory solidarity’ between EU member states, seeking implement procedures which will divide responsibility for migration throughout the EU bloc. The pact has already been criticised on both sides of the political spectrum: Amnesty International have claimed the pact will cause a ‘surge in suffering’, while Jordan Bardella, President of France’s far-right party National Rally, called the pact ‘terrible’ and asked voters to give it the ‘worst possible defeat’ when France heads to the polls in June. The President of the European Parliament, Roberta Metsola, admitted that the pact ‘will not solve everything overnight’, but argued that ‘it is 10 giant leaps forward’.
In the Courts
Last Tuesday, the European Court of Human Rights delivered a judgment that, for the first time, held that government climate inaction constituted a breach of human rights under the ECHR. A group of Swiss older women – as part of the activist group KlimaSeniorinnen, Senior Women for Climate Protection – brought the case to the Court. They alleged that Switzerland’s poor climate policies has put them at increased risk of death during heat waves caused by climate change. The judgment confirms that the convention places countries under positive obligations to take effective and timely measures to fight climate change; finding a breach of Article 8 by sixteen votes to one, the Court held that Article 8 confers a right upon citizens to be protected from the ‘serious adverse effects of climate change on lives, health, wellbeing, and quality of life’. The Court also found unanimously that there had been a breach of Article 6 § 1 (access to court) as domestic courts in Switzerland had not taken the complaints of the KlimaSeniorinnen sufficiently seriously. Though the Court also dismissed two other cases making similar arguments for issues of admissibility, six other climate cases previously adjourned can now be fully considered by the Court in light of this historic decision. The case was discussed in more detail earlier this week on the latest episode of Law Pod UK, available here.
The Supreme Court of Arizona ruled last Tuesday that a near-total ban on abortion can come back into force following the repeal of Roe v Wade. The law in question was originally established in 1864 and bans all abortions with no exceptions but to save a woman’s life. It was stated in judgment that the case is only one of ‘statutory interpretation – it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the law’s] constitutionality, which is not before us’. The judges ruled that, in the absence of any legislation restricting the law or authorising abortion, and in light of the repeal of Roe v Wade, the law was enforceable. Despite this, the Supreme Court did delay enforcement for two weeks to allow the plaintiffs to commence further challenges against the law – in particular with regard to its constitutionality – in the lower courts. Katie Hobbs, Governor of Arizona, has come out against the judgment. In an official statement released after the ruling, she stated: ‘I will not let overzealous county attorneys take this as an opportunity to target any individual. As long as I am Governor, no Arizonan will be prosecuted by extremist county attorneys for seeking abortion care’. She has reiterated that an Executive Order she passed last year will continue to stand, which centralises all abortion-related prosecutions to Democrat Attorney General, Kris Mayes, and prohibits Arizona state agencies from assisting in abortion-related investigations.
In a judgment handed down by the Upper Tribunal (Immigration and Asylum Chamber) last week, the Court held that Home Office decisions to refuse to grant family reunion visas to refugees feeling Gaza without biometric checks were ‘irrational and unreasonable’. The applicants had requested their applications be substantively decided in advance of the submission of biometric data, since, as a result of the ongoing conflict, the visa centre in Gaza is not functioning. The nearest centre conducting biometric checks is in Cairo, Egypt. The Home Office policy required that for visas to be approved without biometric data, applicants must prove they face a ‘personal risk of harm, which is separate to the level of risk faced by the wider population’. Jackson J stated that he does ‘not consider that in the context of the conflict in Gaza […] that it is necessary for a person to show that they are specifically targeted to be able to establish that they are at risk due to their personal circumstances.’ The Court thus held that the Home Office policy was a disproportionate infringement on the Palestinian families’ right to private and family life, and thus in breach of Article 8 ECHR.
Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09) – read judgment
The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.
The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.
The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.
It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of death. Such requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.
The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB) – read judgment
The facts of this case are simple. A defamatory comment was posted on the claimant’s Google maps directional page, implying that he was a “loser” as a lawyer and that his firm lost “80%” of cases brought to them. The defendant claimed that someone must have hacked in to his own Google account to put up the post.
There were jurisdictional complications in that the firm is situated in Colarado but these need not concern us here as Sir David Eady, sitting as a High Court judge, allowed the trial to go ahead in England. The real question was why any third party would have gone to the trouble of hacking into the defendant’s Google account in order to post the offending review; if the objective were merely to hide the hacker’s identity from the claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer. Continue reading →
The 22 year old patient in this case, X, was unconscious in intensive care during the course of this hearing, following a serious stroke. There was virtually no prospect that he would recover. This urgent application by X’s parents, out of hours, before Poole J was for a declaration that it would be lawful for a doctor to retrieve X’s sperm for storage after his death. The applicants also sought an order that X’s father V could sign the relevant consents under the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). The applicants did not seek any orders in respect of the use of X’s sperm once collected and stored. That was for another day.
The Trust took a neutral position on whether the declaration and order sought were in X’s best interests.
Henrietta Lacks was a young Black woman who in 1951 was diagnosed with a particularly agressive form of cervical cancer. Her treating doctors at the Johns Hopkins hospital took a sample from the tumour and that was the birth of “HeLa” – an “immortal” line of fast-replicating cells that have been reproduced every since, used in scientific and medical innovations including the development of the polio vaccine, infertility research and even the early research into a vaccine against Covid19. The HeLa cell line was in essence the first time human cells could be successfully cloned and it has been in use continually for research that has touched nearly every realm of medicine.
In October 2021, her estate filed suit against Thermo Fisher, the pharmaceutical company that bought the cells from the hospital. Her family, represented by Ben Crump, the attorney who represented the family of George Floyd in 2020, is asking the company to pay back the full profits gained over 70 years of using her cells without consent. This is the US remedy of “disgorgement of profits”, which essentially involves the transfer of all the company’s patents and profits from the HeLa line to the Lacks estate. In essence, disgorgement removes the incentive to unjustly enrich yourself at another’s expense.
The problem with this remedy is it is dependent on the enrichment being based on the other person’s property. In US law, as in the UK, there is no property in the body. In fact US law is silent on ownership of bodily resources. The only statute that governs this subject is the 1984 National Organ Transplant Act which bans the sale of all organs including kidneys. The ban only extends to the sale of kidneys for transplantation; there is no ban on the sale of kidneys for research and experimentation.
As has been long-heralded, the law on universal jurisdiction changed today. The change is contained in the new Police Reform and Social Responsibility Act and means that although anyone can initiate war crimes proceedings, the consent of the Director of Public Prosecutions will be required before an arrest warrant is issued. The Justice Minister Ken Clarke said:
We are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution.
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It took until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. In light of the dangers posed by climate change, is it time to go one step further and grant rights to the Earth herself?
GROSS v. SWITZERLAND – 67810/10 – Chamber Judgment [2013] ECHR 429 – 
Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09) – 
The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs. The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).
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