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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/28/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Sometimes, in law as in life, keeping things simple is the best approach. Unfortunately for the Police Service of Northern Ireland (‘PSNI’), the Supreme Court found in DB v Chief Constable of PSNI [2017] UKSC 7 that the Force had made both the law and its life, in policing parades in Belfast, more complicated than it needed to be.
This appeal from a judicial review decision was all about the PSNI’s powers, and its understanding of its own powers, to police illegal parades in Belfast. Fittingly, the judgement was delivered by Lord Kerr, Northern Ireland’s former Lord Chief Justice, who (as Wikipedia reliably tells me) is an alumni of Queen’s University, Belfast. The underlying facts will be familiar to anyone with a passing interest in the knock-about politics of Northern Ireland and they drew on those most pressing of issues there: parades and flags.
How the lockdown was reportedby the newspapersin March. Image: The Guardian
Emmet Coldrick is a barrister at Quadrant Chambers, London. The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.
This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”.The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England. They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).
These extraordinary new laws were made without prior debate in Parliament. The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.
On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one. The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”). That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.
Mr Dolan’s challenge is pending in the Court of Appeal. It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health[2020] EWHC 1786 (Admin) (6th July 2020). But the Act presents difficulties in interpretation that were not grappled with in the judgment. I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.
Re J (A Child) ([2013] EWHC 2694 (Fam) – read judgment
In this case the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. He emphasised that the only proper purpose of such an injunction was to protect the child and refused to make an order in the wide terms sought by the Council. As a result, he allowed the publication of video footage and photographs of a baby being removed from its parents. Continue reading →
In a unanimous decision ([2012] UKSC 11) the Supreme Court allowed the appeal of Times Newspapers Limited against a decision of the Court of Appeal ([2010] EWCA Civ 804) which had held that it could not rely on Reynolds qualified privilege. The Supreme Court restored the decision of Mr Justice Tugendhat ([2009] EWHC 2375 (QB)) who had ruled, on the hearing of a preliminary issue, that the Times was entitled to rely on the defence of Reynolds qualified privilege in relation to the printed publication of the article about the claimant.
Background
The claimant was a Detective Sergeant in the Metropolitan Police. An anonymous source claimed that Russian oligarchs had paid a police officer for information about extradition requests. The source stated that the police officer “could be” the claimant and that he had reported this to the police. In April 2006 the journalists concluded that the police might not be properly conducting an investigation into the claimant. They approached the claimant and other persons concerned with the allegations which caused an investigation to commence. On 2 June 2006 The Times published an article headed “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website, where it continued to be published after the date of the print publication. The claimant sued for libel over both print and website publications.
As the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.
This blog has already covered the reaction to the shootings in Paris in some detail. The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and to criticise, without fear of oppression or violence. It is against this backdrop that we might remember that UK Ministers are already in the process of asking Westminster to expand our already broad framework of counter-terrorism legislation.
Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776 (21 July 2015) – read judgment
In my last post on UKHRB I commented on developments in UK, ECHR and EU jurisprudence relating to procedural fairness in the context of national security.
The developments in this recent case offer some further interesting thoughts on the topic. To explain the case, and put its ramifications in a broader context, this post will be divided into three parts. In the first I outline my original argument as set out in the earlier post. The second will explain the case itself. The third will offer five brief comments on the broader issues the cases touches upon.
In brief, the court in Kiani followed Tariqand held that AF-type disclosure (see below) was not a universal requirement of fairness; the interests of justice could require a lower standard of disclosure without violating the absolute right to a fair hearing. Continue reading →
“Not very” seems to be the answer in the Court of Appeal decision in M (Children) [ 2019] EWCA Civ 1364
Sir Andrew McFarlane upheld Keehan J’s decision to disclose the parents’ initial statement and position statement to the police following the initial interim care hearing.
In family proceedings parents are advised that their evidence is confidential to those proceedings. They are encouraged to be open and frank and to understand that their children’s interests are the Court’s main concern.
But something seems to be eroding these principles, a trend set since the case of Re H (Children) [2009] EWCA.
The Court of appeal approved the test from Re C ( see below) and gave it the “fit for purpose” badge. The decision should be seen in the context of this being a police terrorism enquiry.
The Facts
The case involved two children aged 2 and 3, born in Syria to parents who were UK Citizens. The parents had travelled to Syria in 2014 against FCO advice, and met there. The family came to the attention of the UK authorities in November 2018 when they were in a detention centre in Turkey, intending to travel to the UK. The Home Secretary made a Temporary Exclusion order against the father. The family returned to the UK in January 2019. The parents were arrested under S. 41 of the Terrorism Act 2000, interviewed and subsequently granted bail. The children were placed in foster care initially under police protection. On 11 January a hearing took place for an application for interim care orders. The threshold was pleaded on the basis of the harm the children were likely to have been exposed to whilst in Syria. The parents did not contest the application, with an interim care plan for placement with grandparents.
On 1 February the police investigating potential criminal activity by the parents made an application to the Family Court for disclosure of the parents’ witness and Position statements. The application was heard by Keehan J on the 8th April, who granted disclosure to the police.
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.
In the news
This week, free speech continues to be widely discussed, along with prisoner votes and the popular conception of human rights law in the UK. A group of Birmingham women win a landmark equal pay case in the Supreme Court and the Chief Coroner speaks.
1 Crown Office Row seminar on inquests and inquiries
Public Inquiries and inquests have dominated the headlines recently, with members of One Crown Office Row appearing in many of them. On 8 November 2012 One Crown Office Row will be hosting a mock trial and panel discussion on the topic – there are still a few places left for legal practitioners, full details here.
R (on the application of Philip James Woolas) and The Parliamentary Election Court [2010] EWHC 3169 (Admin) – Read judgment / press summary
Phil Woolas has lost his appeal by way of judicial review of the decision to strip him of his election victory in Oldham East and Saddleworth in the 2010 General Election. He has said he will not appeal the decision.
Mr Woolas had to first convince the Administrative Court, which handles judicial reviews of the decisions of public bodies, that it had jurisdiction to hear the claim. He won on this point. However, once it had accepted it could hear the case, the Administrative court went on to uphold most of the decision of the Election Court.
Le Roux and others v Dey (South African Constitutional Court) – read judgment
With the new libel reform proposals doing the consultation rounds it is enlightening to see how other jurisdictions strike the balance privacy and dignity on the one hand, and freedom of expression on the other.
A recent case before the South African Constitutional Court raised two interesting issues: the extent to which liability for defamation should be reduced where children are concerned, and the question whether it should be actionable at all to refer to someone in terms of the condition protected by the Constitution – sexual orientation, for example.
In January of this year Paul Chambers used Twitter to express his feelings about the possible closure of Robin Hood Airport due to snow, which he feared would thwart his trip to Belfast to meet his new girlfriend, a fellow twitterer going by the name @Crazycolours.
A week later, he was arrested at work by five police officers, questioned for eight hours, had his computers and phones seized and was subsequently charged and convicted of causing a “menace” under the Communications Act 2003 .
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.
Association for Molecular Pathology et al v Myriad Genetics Inc, et al, United States Supreme Court 13 June 2013 – read judgment.The headlines are misleading. Myriad Genetics has lost some, but not all of its patent protection as a result of this final ruling in the long running litigation concerning the company’s BRCA 1 and BRCA 2 breast cancer gene patents. According to the American Council on Science and Health, the Court’s decision is
a groundbreaking moment in the history of biotechnology, and a case that will surely rank among the most noteworthy biomedical decisions of our time.
I have posted here, here and here on previous stages in the Myriad patent case, in the United States and Australia, so will not set out the facts again (although for anyone who is interested, the Supreme Court judgment provides a superbly clear explanation of the molecular biology underlying the issues). Continue reading →
A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment
A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.
The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules. The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified. Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.
R (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2014] UKSC 60 – read judgment
The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).
At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.
The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment. Continue reading →
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In a unanimous decision (
As the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the 
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
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