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UK Human Rights Blog - 1 Crown Office Row
Search Results for: puberty blockers consent/page/32/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)
The Human Rights Convention, in requiring that states ensure respect for family life, protects first and foremost the rights of the child. But of course the Hague Convention has different priorities. The first aim of that instrument is to deter either parent from taking the law into their own hands and removing themselves and their children to another jurisdiction. If abduction does take place, the next object of the Convention is to restore the children as soon as possible to their home country, so that any dispute can be determined there, since the parent left behind is the wronged party, and should not be put to the trouble and expense of coming to the requested state in order to participate in the resolution of factual issues here. Article 12 therefore requires a requested state to return a child forthwith to its country of habitual residence if it has been wrongfully removed in breach of rights of custody. Article 13(b) mitigates that obligation if there is a “grave risk” of “physical or psychological harm.” Continue reading →
Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered. Continue reading →
Welcome back to the UK Human Rights Roundup, your regular grape and strawberry fondu 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 Sarina Kidd.
This week, important figures criticise the legal aid reforms, the MoD may have to watch their back, surveillance activities threaten to challenge a number of laws and secret ‘justice’ is slammed once again.
Denise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – read judgment
“Congratulations! You have arrived on yet another ontime Ryanair flight. Ryanair – for the lowest fares and the best ontime record. Outstanding”
… or maybe not so outstanding.
On 11 February 2010, Ms McDonagh booked a flight with Ryanair from Faro (Portugal) to Dublin (Ireland) scheduled for 17 April 2010. On 20 March 2010, the Eyjafjallajökull volcano in Iceland began to erupt. On 14 April 2010, it entered an explosive phase, casting a cloud of volcanic ash into the skies over Europe. On 15 April 2010, the competent air traffic authorities closed the airspace over a number of Member States because of the risks to aircraft. Ms McDonagh’s flight was cancelled following the closure of Irish airspace. Ryanair flights between continental Europe and Ireland resumed on 22 April 2010 and Ms McDonagh was not able to return to Dublin until 24 April 2010. In the intervening week, no efforts were made by the airline to provide Ms McDonagh with the care to which she was entitled under the relevant EU Regulation No 261/2004, providing rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Continue reading →
These are the words that Hayden J, Vice President of the Court of Protection, used to describe AH, the applicant in this case. The Official Solicitor identified it as “the most troubling and tragic of cases of this kind” with which she has been involved.
This case is the most recent and cogent in the consideration of best interests under the Mental Capacity Act in terms of continuing life-saving treatment. The “best interests” test is laid out in Aintree University Hospital NHS Trust v James [2013] UKSC 67.
AH’s family was originally from Pakistan. She and her family moved to Uganda but they were expelled, as South Asian residents, under the Idi Amin regime, in the early 1970’s. AH’s medical history showed signs of non-specific arthralgia, raised calcium levels and Type 2 diabetes. She had been diagnosed with carpal tunnel syndrome. She did not smoke, nor did she drink alcohol.
In early January 2020 she suffered a high fever which her doctors identified symptomatic and not causative of the cytokine/autoimmune ‘storm’ which created the “devastating” neurological damage and the pathological processes she has suffered from since. Both her treating doctors had seen similar cytokine ‘storms’ in patients critically ill with Covid-19 although neither has seen damage as extensive as that sustained by the applicant. All agreed that it was in consequence of this ‘storm’ that there had been such “extensive damage” to the nerves and to the muscle as well as to the brain.
CD v ST (judgment of the Court) [2014] EUECJ C-167/12 (18 March 2014) – read judgment
Z v A Government Department and the Board of Management of a Community School C‑363/12 – read judgment
The European Court (CJEU) has now considered two requests for preliminary ruling made in proceedings between intended mothers (also referred to as a commissioning mother) who have had babies through a surrogacy arrangement, and their employers concerning the refusal to grant them paid leave following the birth of the babies. It has replied that EU law does not provide for commissioning mothers to be entitled to paid leave equivalent to maternity leave or adoption leave.
I reported on the AGs’ opinions in both cases here, noting that AG Kokott and AG Wahl took a completely different approach in their interpretation of the applicability of Directive 92/85 in surrogacy cases; the Court has clearly decided that granting maternity leave in these circumstances would be a step too far.
On Monday the Ministerial and other Maternity Allowances Act 2021 came into force, allowing the Attorney General, Suella Braverman QC, to be the first minister to take maternity leave. The Act grants cabinet ministers six months’ maternity leave whilst retaining their government post, whereas in the past MPs would have to resign to take time off to give birth. The Act is not without its critics, including those saying it should apply to MPs outside the Cabinet, and include provisions for paternity, adoption and shared parental leave. There was also heated debate in the Lords on the gender-neutral phrasing of the original Bill, with the Lords voting to replace ‘person’ with ‘mother’ in the final Act, despite its potential exclusion of trans and non-binary people.
A new offence of non-fatal strangulation has been included in the Domestic Abuse Bill following a campaign by the Centre for Women’s Justice, other organisations and the Victims’ and Domestic Abuse Commissioners. The Bill is passing through the House of Lords and now includes the offence of intentionally strangling another person or otherwise affecting their ability to breathe. Currently perpetrators are usually charged with common assault, with a maximum of just six months in jail. The Bill also includes amendments strengthening the laws on ‘revenge porn’, making it an offence to threaten to share intimate images of a person with the intention to cause distress, and extends the coercive control offence to situations where perpetrators and victims do not live together. The Victims’ and Domestic Abuse Commissioners welcomed the amendments but urged the Government to go further in creating a defence for people who commit offences due to domestic abuse.
On Friday the Women and Equalities Committee published the Government’s response to its report on the impact of coronavirus on BAME people, in relation to inequalities in health, employment, universal credit, housing, and the no recourse to public funds policy. The Committee’s inquiry found that comorbidities in BAME people place them at risk of experiencing coronavirus more severely and with graver health outcomes. Specific risks to BAME people include difficulty in accessing Government guidance, the disproportionate impact on BAME people of zero-hour contracts and being denied furlough, difficulties in applying for Universal Credit, and overcrowded housing due to housing inequality.
The Department of Health and Social Care on Friday published new guidance for care homes and visitors, to take effect on 8 March. This is not a change in the law, as visits to care homes have never been unlawful, but the new guidance sets out the government’s advice on safe visiting practices. This is that:
Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) – Read judgment / press summary
The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy. Two convicted prisoners were therefore unlawfully detained.
This fascinating 6-3 majority decision could be important in respect of setting the boundaries for the courts’ scrutiny of executive powers. It is also, for the record, not a decision which is based on human rights. The appellants are both convicted criminals (and foreigners too), so the court may be criticised for upholding their human rights despite their criminal actions. But this is a case decided on traditional public law grounds, which preceded the human rights act by many years. As Lord Hope put it:
Laura Profumo brings us the latest human rights goings on.
In the News:
This afternoon, the new Conservative Government’s legislative plans were announced in the Queen’s Speech. Michael Gove, the recently appointed Justice Secretary, will have to defend his party’s intention to scrap the Human Rights Act, blunting the influence of Strasbourg jurisprudence. As Daniel Hannan observes, Gove faces a “different order of magnitude” in his new role, finding himself up against an “articulate and wealthy lobby” within the legal profession. An “elegant compromise” might be found, Hannan suggests, in amending our extant Bill of Rights to include ECHR freedoms, restoring “our sovereignty and our democracy”.
It is certainly clear that Gove will have to carefully pilot the reforms through Parliament. Lord Falconer cautions that the House of Lords, where the Conservatives don’t have a majority, may prove obstructive:
“If the Conservative measures strike at fundamental constitutional rights, the Lords will throw this back to the Commons”.
The backbencher minority of ‘Runnymede Tories’, forcefully headed by David Davis, will also seek to stall the Bill’s course. Yet, Matthew d’Ancona concedes, “if anyone has the intellectual firepower to square all the circles it is Gove”.
In brighter news, the Republic of Ireland has become the first country to legalise same-sex marriage through popular vote. Some 62% of the electorate voted in favour of the reform, with all but one of the Republic’s 43 constituencies voting Yes. The result comes just two decades after the Irish government decriminalised homosexuality, marking a milestone in Ireland’s divisive religious history. The Archbishop of Dublin, Diarmuid Martin, recognised the vote as a “social revolution”, which requires the Church to “have a reality check, not move into the denial of realities”.
In a prelude to the historical referendum, the ‘Gay Cake’ Case, which has gripped Northern Ireland for the last year, come to a close last week. In a clear decision, it was found that the Christian bakery’s refusal to make a campaign cake the LGBT support group, QueerSpace, amounted to direct discrimination on grounds of sexual orientation. The outcome has not been welcomed by all. TUV leader Jim Allister lamented it a “dark day for justice and religious freedom”, whilst Melanie McDonagh, writing in the Spectator, found the decision inversely “intolerant and discriminatory”, forcing a Presbyterian business to promulgate a message “at odds with their belief”. Yet talk of religious persecution is besides the point, argues academic Colin Murray. The case concerned the “ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium”. It was not, as McDonagh suggests, a case of cake artisans’ ‘right to ice’, but the right of the public to lawfully contract with a business, irrespective of “how that public is constituted”.
Following the decisive vote across the border yesterday, many hope that Northern Ireland, the only part of the United Kingdom where same-sex marriage is still prohibited, will follow suit. Deputy First Minister Martin McGuinness has advocated a referendum: “This is a matter of whether or not we want to live in a modern progressive society that respects minorities”. Now that Northern Ireland has their cake – it remains to be seen whether the idiom will ring true.
In Other News:
Haile v London Borough of Waltham Forest: The Supreme Court ruled that the appellant had not made herself intentionally homeless when, after learning that she was pregnant, she left her London hostel. As she would have been evicted from the hostel anyway, on giving birth to her child, the Court ruled in her favour. Her lawyer, Nathaniel Matthews, welcomed the decision as one in which “glorious common sense prevailed. Women who become homeless because they have become pregnant must be protected”.
Vladimir Putin has signed a bill which allows foreign NGOs to be banned from operating in Russia. The law will allow authorities to prosecute NGOs which are designated as ‘undesirable’ on national security grounds. Individuals working for such organisations could face fines, or up to six years’ imprisonment. Amnesty International has condemned the measure as part of the “ongoing draconian crackdown…squeezing the life out of civil society”.
In the Courts:
Identoba and Others v GeorgiaThe Georgian police failed to protect participants in a march against homophobia from violent attacks of counter-demonstrators. ECtHR held the police had violated the protestors’ Article 3 and 11 rights, in failing to take sufficient measures to prevent the attacks.
SS v the United Kingdom; F.A and Others v the United Kingdom A case concerning convicted prisoners’ entitlement to social security benefits was held to be inadmissible by ECtHR. The applicants were prisoners in psychiatric hospitals who complained that, under new 2006 regulations, denying them benefits paid to the other patients amounted to unjustified discrimination. The Court emphasised Contracting States’ margin of appreciation in social policy, finding that the differential treatment was not unreasonable, given that the applicants, whilst patients, were also convicted prisoners.
Gogitidze and Others v Georgia The ECtHR ruled that the forfeiture of a wrongfully acquired property was not in breach of the tenant’s right to peaceful enjoyment of their possessions, under Article 1 of Protocol No.1. As the property confiscated belonged to the former Deputy Minister of the Interior, the Court inquired whether a proportionate balance had been struck between the method of forfeiture and the public interest in combating political corruption. The domestic courts were held to have achieved such a balance.
Events:
‘Do we need a new Magna Carta?’ The Miriam Rothschild & John Foster Human Rights Trust, and University College London, are hosting a lecture given by Lord Lester QC, on alternatives to the embattled Human Rights Act. The event will take place at 6.15pm, 15th June, at the Institute of Child Health. Please RSVP to rsvplectureinvitation@gmail.com.If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor, Jim Duffy, at jim.duffy@1cor.com
At the conclusion of the inquest into the death of Scott Rider, the coroner described Rider’s treatment in prison as “inhumane and indefensible”. Rider died by suicide in June 2022 after serving 17 years of an “imprisonment for public protection” (IPP) sentence, a form of indeterminate prison sentence. A few weeks before his death Rider told a member of prison staff that he felt as though his sentence had ruined his life and there was no hope of release. IPP sentences were abolished in 2012, but the abolition did not apply retrospectively to those who had already received the sentence. As of 31 December 2022 there were 2,892 prisoners serving IPP sentences. The coroner sent a Prevention of Future Deaths Report to the prisons minister, writing that “if action is not taken to review all prisoners sentenced to IPP then there is a risk of further deaths occurring”.
The purpose of inquest proceedings also came under scrutiny this week, with the outgoing Chief Coroner, HHJ Thomas Teague KC, describing “a long-latent tension” at the heart of what the coronial service is trying to achieve in his Annual Report published on Thursday. He criticised the pressure on coroners to expand the scope of their investigations and expressed his view that “an inquest should remain a hearing that is narrowly focused on establishing a person’s immediate cause of a death, as opposed to in effect becoming a surrogate public inquiry”.
Finally, the Safety of Rwanda (Asylum and Immigration Act) 2024 was passed into law on Thursday. The Act requires decision makers to “conclusively treat the Republic of Rwanda as a safe country”, where a “safe country” means a country to which a person may be removed without violating the UK’s obligations under international law. Speaking on 22 April, Prime Minister Rishi Sunak said that he anticipated that first flight removing people to Rwanda would leave in 10-12 weeks, stating that “these flights will go come what may” and that “no foreign court will stop us from getting flights off”.
In international news
Major campus protests have broken out across the US regarding the ongoing conflict in Gaza, with students calling for their universities to divest from companies with ties to Israel. Hundreds of arrests have been made over the last week. At New York University 120 people who had erected an encampment were arrested and all but four were charged with trespass. Hundreds more arrests were made at Emerson University, Yale University, Columbia University, the University of South California and the University of Texas. At the University of Texas, the state Governor called in troopers with the Texas Department of Public Safety, who wore riot gear and were seen using their bikes to push protesters back.
In the Courts
The High Court dismissed the Solicitor General’s claim against Ms Trudi Warner in a judgment handed down on Monday. On 27 March 2023 Warner had stood outside a court where members of an environmental protest group were due to be tried with a placard that read “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE”. The Solicitor General alleged that Warner’s conduct was intended to interfere with the administration of justice and amounted to contempt of court. Mr Justice Saini held that it was “fanciful” to suggest that Warner’s behaviour could be considered to fall within the category of contempt. The content of the placard “accurately informed potential prospective jurors about one of their legal powers… It is not unlawful to accurately communicate the bare principle of law to potential jurors in a public forum”.
New legislation significantly curtails accommodation provision for those seeking release from immigration detention. The likely result is more and more people being held in immigration detention.
The fight to end to indefinite detention of immigrants pending their removal from the UK has been gathering momentum. There have been parliamentary debates and expert reports, all critical of the Home Office policy of what effectively involves ‘warehousing’ immigrants in cramped and often unsafe conditions with no end in sight.
While there is no legal maximum for how long someone can be held in immigration detention, the Home Office can only use their power to detain if they intend to remove the person and can do so ‘within a reasonable period’. If at the outset it is apparent that the person cannot be removed within a reasonable period they should not be detained at all. If it becomes apparent once detention has commenced that the person cannot be removed within a reasonable period, then the person should also be released. In addition, the Home Office should exercise appropriate diligence in their efforts to remove the person.
Despite these well-established restrictions on the power to detain, men and women are still held in detention centres for extended periods of time. In March 2018, a report by HM Inspectorate of Prisons of Harmondsworth Immigration Removal Centre found that 23 men had been held for over year, and one man had been held for four years.
Do they have anything in common? Relatively little, says Nicola Barker, Professor of Law at the University of Liverpool.
When the IHRAR was announced by Robert Buckland in December 2020, it was accompanied by some of the usual rhetoric about the courts “rewriting” legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The Terms of Reference given to the IHRAR were relatively narrow and the Call for Evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.
However, in its consultation document, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184). In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the ‘living tree’ doctrine.
Given that the Review was only commissioned a year ago it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to section 6. The government propose to expand the exception in section 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that section 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142). It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK.
The more substantive questions of the balance between speech and privacy, between rights and responsibilities, limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.
The table below maps the government’s proposals for a new Bill of Rights on to the recommended and not recommended/rejected options in the IHRAR report. The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. Green text indicates where the government’s proposals broadly match a recommendation of the IHRAR, while red text indicates that the government are proposing something that the Review explicitly or implicitly cautioned against. Sometimes the proposals do not map in exactly the terms recommended or rejected by the Review, but I have matched them as closely as possible with the language used by each. For example, where the government proposals refer to ‘enabling’ UK courts to take account of case law from other jurisdictions and international bodies (a power they already can and do exercise), the Review did not consider affirming this existing power but rejected ‘requiring’ them to consider such case law. As the table illustrates, the government’s proposals bear little resemblance to the recommendations made by the IHRAR panel. More of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its Terms of Reference.
The Independent Review recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the Courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals.
Gurung v Secretary of State for the Home Department [2012] EWCA Civ 62 (02 February 2012) – read judgment
In a short but fascinating judgment which lays bare the foundation stones of judicial review, the Court of Appeal has articulated the principles to be applied when considering whether automatic deportation of a foreign criminal was “proportionate” for the purposes of Article 8 of the Convention.
This was an appeal by the secretary of state against a decision of the Upper Tribunal (UT) that the deportation of the respondent (G) would interfere with his family life. The respondent had arrived in the United Kingdom in 2005 to join his father who had been granted indefinite leave to remain in the United Kingdom at the end of his service with the Gurkhas. Shortly afterwards G was involved in a group attack on a man, which led to the unconscious victim being thrown into the Thames and drowned. G was subsequently tried and convicted of manslaughter, which meant that he was subject to automatic deportation under the UK Borders Act 2007. However, the Upper Tribunal found that automatic deportation would be a disproportionate interference with his right to family life in the UK. Continue reading →
Mousa and others, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment
A postscript to Rosalind English’s post of today. In the substantive judgment (see Adam Wagner’s post on the order), the Divisional Court decided two main issues, one relating to the independence of the Iraq Historic Allegations Team, and one relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the ECHR. The Secretary of State succeeded on the first issue, whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. Hence there was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue. But more time was spent on the first issue.
What then to do about costs? And why is that interesting – promise you, it is important.
Q v Q ; Re B (a child) ; Re C (a child) [2014] EWFC 31 – 6 August 2014 – read judgment
Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”. As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:
The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.
All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.
Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service. Continue reading →
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E (Children) FC [2011] UKSC 27 – read judgment ; see previous post for summary
Welcome back to the UK Human Rights Roundup, your regular grape and strawberry fondu of human rights news. The full list of links can be found 
Denise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – 
Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) – 
New legislation significantly curtails accommodation provision for those seeking release from immigration detention. The likely result is more and more people being held in immigration detention.
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