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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/29/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
Hard on the heels of the UN-ECE Aarhus Compliance Committee (see my previous post), Lord Justice Sullivan’s Working Party on Access to Environmental Justice has similarly condemned the current system under which judicial review claimants face an onerous costs burden when they advance claims which do not ultimately succeed.
The Working Party reported initially in May 2008 on access to justice in environmental cases, and was critical of the current costs regime. Its current focus is rather narrower that the recent conclusions of the Aarhus Compliance Committee, but potentially more effective thanks to that focus. It reviews the rather fuzzy case-law on Protective Costs Orders, fashioned by the judges to help Claimants against unlimited costs liabilities. The report can be read here.
This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 involved the alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault.
The Supreme Court unanimously dismissed the Government’s appeals and ruled that the doctrine of state immunity was no bar to the claims, and that the Government and the various officials sued had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state so as to defeat the claims brought against them.
John Wadham today takes on the role of National Preventative Mechanism chair. He was formally Chief Legal Officer for the Equality and Human Rights Commission, Deputy Chair of the Independent Police Complaints Commission and most recently the Director of the international human rights organisation, Interights. Throughout his career, John has worked to protect the rights of detainees.
We are delighted to feature this from John on his new role:
The National Preventive Mechanism describes the network of independent statutory bodies that have responsibility for preventing ill-treatment in detention. In every jurisdiction of the UK – England, Northern Ireland, Scotland and Wales – the bodies in this network have the job of inspecting or monitoring every place of detention to try to prevent the ill-treatment of those detained. Whether a person is compulsorily detained in a prison, an immigration removal centre, a psychiatric hospital, or as a child in a Secure Training Centre, there is an organisation responsible for assessing how detainees are treated and ensuring that no ill-treatment will be tolerated.
The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is the international human rights treaty designed to strengthen the protection of people deprived of their liberty by requiring National Preventive Mechanisms to be set up in every country. OPCAT’s adoption by the United Nations General Assembly in 2002 demonstrated a consensus among the international community that people deprived of their liberty are particularly vulnerable to ill-treatment and that efforts to combat such ill-treatment should focus on primarily on prevention. OPCAT embodies the idea that prevention of ill-treatment in detention can best be achieved by a system of independent, regular visits to all places of detention. OPCAT entered into force in June 2006. There are already 80 countries party to OPCAT, and 62 designated NPMs across the world – all designed to prevent ill-treatment in their places of detention. The UK ratified OPCAT in December 2003 and designated its own NPM in March 2009. Continue reading →
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.
Updated x 2 | Journalist Christopher Booker reported in Saturday’s Telegraph that an Italian woman was forced by Essex County Council social services to have a cesarean section, and then had her baby taken away from her – all sanctioned by the Court of Protection.
The story has become international news. I was going to write in detail on this, but family law barrister Lucy Reed has done a much better job than I would have been able to do. Her blog is here. Essex County Council have also released a statement of facts, which is here. I also recommend Elizabeth Prochaska and Suesspicious Minds.
I will keep this very simple. It was pretty obvious, based on Christopher Booker and John Hemming’s form (see my blog from 2011), that we were only getting a partial view of the story.
Napier Barracks, Kent, which was the subject of this claim. Image: The Guardian
In R (NB & Others) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin), the High Court ruled that the treatment of asylum seekers at Napier military barracks did not meet minimum legal standards, that the process for allocating asylum seekers to accommodation centres was flawed and unlawful and that the six claimants had been falsely imprisoned during the “inevitable” Covid-19 outbreak. David Manknell of 1 COR was junior counsel to the SSHD.
Background
In September 2020, Napier military barracks was converted into a medium-term accommodation centre for asylum seekers. By the end of January 2021, the centre had witnessed a major outbreak of Covid-19, protests by residents against poor conditions inside the facility and a fire.
NB and the other five claimants had been kept at the barracks for months. This was despite evidence that that they had all experienced “people trafficking and/or torture prior to their arrival in the United Kingdom” and that several of them were suffering from pre-existing mental health issues as a result of their experiences. At issue in this case was the Defendant’s decision in each of the Claimants’ cases that they should be accommodated at the Barracks.
The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.
Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.
P (A Child) [2014] EWCA Civ 888 – read judgment here.
1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.
In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.
The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.
Requiring the bill to maintain full compliance with domestic and international law
Ensuring that Rwanda is only considered a safe county “when and as long as” arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice (for example ensuring that asylum seekers are not sent back to the countries from which they fled).
Allowing decision-makers, such as immigration officers, courts and tribunals to consider whether or not Rwanda is a safe country and to grant interim relief.
Protecting victims of modern slavery from being removed to Rwanda without their consent.
Parliamentarians in France have voted to amend the country’s constitution to include a “guaranteed freedom” of abortion. The measure passed in an overwhelming 780-72 vote. The change was prompted by Dobbs v Jackson’s Women’s Health Organisation, a case in which the US Supreme Court overturned Roe v Wade and so ended the right to abortion for millions of women in the USA.
The people of the Republic of Ireland have rejected proposals to “modernise” the country’s constitution. The country held a referendum to amend Article 41 of the Constitution. Article 41 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” and that the state shall “guard with special care the institution of Marriage, on which the Family is founded”. The proposed changes would have substituted marriage with “durable relationships” and would have replaced the clause relating to mothers’ duties in the home with a clause recognising care provided by family members by “reason of the bonds that exist among them”.
An UN report by the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict has found that there are reasonable grounds to believe that conflict-related sexual violence occurred during the 07 October attacks in Israel including rape and gang rape. A separate internal UN report has described widespread abuse of Palestinian detainees including physical and sexual violence. As the humanitarian conditions in Gaza rapidly deteriorate, countries that previously withdrew UNRWA funding, due to allegations that employees of the agency participated in the 07 October attacks, have announced that they are resuming funding. This includes the EU Commission, Sweden and Canada. In his State of the Union address President Biden has put forward a plan to build a “temporary pier” on Gaza’s coastline to distribute aid.
In the courts
The US Supreme Court has unanimously held that Colorado cannot remove Donald Trump from the ballot of the presidential elections. The Colorado Supreme Court had held that Trump was ineligible to appear on the ballot, under Section 3 of the 14th Amendment to the Constitution which disqualifies anyone “engaged in insurrection or rebellion” against the federal government. Section 3 was originally enacted after the US Civil War to prevent supporters of the Confederacy from taking public office. The US Supreme Court held that only Congress, rather than individual states, can enforce Section 3. A particular consideration was the potential for “chaos” if different candidates were eligible in various states.
The UK Supreme Court began tweeting yesterday as @UKSupremeCourt to deserved international fanfare. Some even speculated that Wikileaks founder Julian Assange’s extradition fate could now be revealed on Twitter.
The court is already being followed by almost 4,000 Twitter users (for the uninitiated, that is a lot) and has already beaten its own Twitter policy’s prediction of “2-3 tweets a week” with eight on its first day. The eventful debut tweets included seven live updates on the swearing-in ceremony of the court’s newest Justice, Lord Reed, and one relenting to Twitter user @FOImanUK‘s valid point that contrary to the court’s stated policy, it should be possible to put freedom of information requests to the court via Twitter.
This is all excellent news. The UK’s newest and highest appeal court is now setting the international standard for open justice, with its splendid press summaries of judgments, live transmission of hearings online (today’s is a very interesting case about the state’s financial responsibility towards disable people), accessible court facilities and generally public-facing approach. This is also as it should be: the Court has a statutory duty to be “accessible”. But the Supreme Court, which is largely independent from the rest of the court system, is now streaking ahead of it in terms of access to justice. And this open justice gap is becoming a problem.
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.
No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.
The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself. Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.
Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues. This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.
Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they? Enter, on a white charger, the Aarhus Convention to the aid of the challengers.
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).
Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system. Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.
New rules on the disclosure of electronic documents came into force on 1 October. This many not sound as exciting as the trendy new Equality Act 2010, which has also begun operating, but the new rules may be of great significance to the justice system.
A new section has been added to the Civil Procedure Rules providing guidance on the disclosure of electronic documents.
This sounds perfectly sensible. What is surprising is how long it has taken for this much needed guidance to reach the justice system. According to the Ministry of Justice the aim of the new rules is “to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.”
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Hard on the heels of the UN-ECE Aarhus Compliance Committee (see my previous post), Lord Justice Sullivan’s Working Party on Access to Environmental Justice has similarly condemned the current system under which judicial review claimants face an onerous costs burden when they advance claims which do not ultimately succeed.
This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. 
The UK Supreme Court began tweeting yesterday as
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the 
The House of Commons Health Committee has 
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
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